ANIL KUMAR Vs. THEKARDUM

JUDGEMENT

(1.) Being aggrieved by the order dated 24/11/2003, passed in Civil Suit No. 33-A/2003 by District Judge Mandla, whereby the application filed by the appellant under Order XXXIV, Rules 1 & 2, CPC has been dismissed, the present appeal has been filed.

(2.) Short facts of the case are that the plaintiff/appellant filed civil suit for specific performance of the agreement dated 19/6/2002, whereby the appellant/plaintiff entered into an agreement with respondent No. 1 to sell the suit property for a sum of Rs. 4,00,400.00 and paid a sum of Rs. 21,000.00 as earnest money and also obtained the possession of the suit property. It was alleged by the plaintiff/appellant in the plaint that a sum of Rs. 2,23,500.00 was paid from time to time right from 19/6/2002 to 21/10/2002. When respondent No. 1 refused to execute the sale deed in spite of notice in favour of plaintiff/appellant and also executed the sale deed in favour of respondent No. 6 on 8/5/2003, the suit was filed along with an application under Order XXXIX, Rules 1 & 2, CPC for protecting the possession and also for restraining the respondents from the suit property.

(3.) The respondents submitted the reply and opposed the prayer of temporary injunction. In the reply, execution of the agreement dated 19/6/2002 and the receipt of the earnest money of Rs. 21,000.00 was not disputed and it was also no disputed that the possession was handed over to the plaintiff/appellant but this fact was denied that further amount of Rs. 2,02,500.00 has been paid after execution of the agreement up to 21/10/2002 on different different dates. It was alleged by the respondents that at the time of execution of agreement on 19/6/2002, an impression was given by the plaintiff/appellant that the sale will take place within a period of fifteen days to two months and a power of attorney was also taken from respondent No. 1 on 26/6/2002 but no amount was paid as alleged by the plaintiff/appellant on different different dates and since number of persons started to visit the suit property, therefore, the respondent No.1 complained with the Collector Mandla on 18/11/2002. It was also alleged that the plaintiff/appellant has not come with clean hand as before filing of the present suit earlier also a suit was filed on 17/4/2003, which was numbered as civil suit No 40-A/2003 and was withdrawn on 12/5/2003. It was alleged that since the intentions of the plaintiff/appellant were not bona fide, therefore, the respondent No. 1 sold the suit property to respondent No. 6 on 8/5/2003. It was also denied that any notice issued by the plaintiff/appellant was received by the respondent No. 1.