ASHISH PRATAP SINGH Vs. MEERA TOMAR

JUDGEMENT

(1.) Present Misc. Appeal has been preferred u/O. 43 Rule 1(r) of CPC challenging the order dtd. 1/9/2023 passed by 9th District Judge, Gwalior (M.P.) in RCS A No.202/2023 whereby, the application filed by appellants/plaintiffs under Order 39 Rule 1 & 2 of CPC has been rejected.

(2.) Precisely stated facts of the case are that appellants/plaintiffs instituted the suit for specific performance of agreement along with declaration and injunction in respect to the property/house situated at Plot No.52-C, Jawahar Colony, Lashkar, Gwalior (M.P.). During the pendency of trial, appellants/plaintiffs filed an application under Order 39 Rule 1 and 2 of CPC which was dismissed by impugned order. Hence, the present appeal is filed.

(3.) Learned counsel for the appellants argued that the order impugned is perverse, illegal and against the settled principles of law. It is further argued that defendants/respondents no.2 and 3 in order to defeat the rights of plaintiffs denied the execution of agreement whereas appellants have duly executed the agreement dtd. 7/4/2017 with defendant no.1 and are always shown their readiness and willingness for performance of the agreement. It is further argued that defendants no.2 & 3 after knowing the fact that agreement has been executed between plaintiffs and defendant no.1 got the sale-deed executed in their favour. Thus, no such valid sale deed was ever executed. It has been alleged by the defendant no.1 that agreement between the plaintiffs and defendant no.1 was not the agreement to sale but the security for loan, however, recitals of agreement does not support the contention of defendant no.1. It is further argued that defendant no.1 in the newspaper on 24.08. 2017 got the public notice of rebuttal published that no agreement had ever been executed between plaintiffs and defendant no.1, but after two days i.e. on 26. 08.2017 she herself extended the agreement between her and plaintiffs thus that notice of rebuttal published in newspaper was having no value. Prima-facie case, balance of convenience and issue of irreparable loss are in favour of plaintiffs/appellants. Hence, the present appeal be allowed and the order passed by court below be set aside.