NAWAL KISHORE TEKRIWAL Vs. JAYA GUPTA

JUDGEMENT

(1.) This is an application by the plaintiff/appellant for injunction restraining the defendant/respondent from transferring the suit property or any part thereof and/or from parting with possession thereof or from otherwise encumbering the suit property of any part thereof in any manner during the pendency of the instant appeal. It may be added here that by the order dated April 3, 1997 the instant appeal has been admitted with the direction to call for the Lower Court Records and to issue notices upon the respondent. While admitting the appeal there was an interim Order of status quo as on date till the disposal of the application for injunction.

(2.) In a suit for specific performance of contract the plaintiff/appellant filed a petition under Order 39 Rules 1 and 2 read with Sec. 151 of the Code of Civil Procedure praying for issuing an order of temporary injunction restraining the defendant/respondent. from transferring the suit property or any part thereof and/or from parting with possession thereof or from otherwise encumbering the suit property upon hearing the Learned Counsel for the plaintiff alone, the Trial Court refused to grant any ad interim injunction ex parte for the reasons stated therein and, further, directed to issue notice calling upon the defendant to show cause within 10 days from the date of receipt of the notice as to why the prayer for the temporary injunction should not be granted. Being aggrieved with this order, the plaintiff preferreo this appeal without waiting for the final disposal of the petition for temporary injunction.

(3.) In the suit, the plaintiff sought for specific performance of a contract of a sale pursuant to an agreement entered into by and between him (the plaintiff) and the defendant on Aug. 8, 1994. The agreement being a written one was for sale of suit property being land measuring about 2 Cottahs 2 Chattacks 30 sq. ft. together with a three storied building thereof for a total consideration of Rs. 20,00,000.00. Out of the said consideration, a total sum of Rs. 10,00,000.00 was already paid to the defendant. The transaction of sale was to be completed within six months from the execution of the agreement for sale. While asserting his readiness to perform his part of the obligation under the agreement the plaintiff alleged that the defendant was avoiding and neglecting to complete the said transaction in pursuance of the agreement for sale dated 8.8.1994 and, hence was the necessity for the suit. It was also alleged that the defendant was preparing to sell out the suit property to some third party on some higher consideration. There was, therefore, also necessity for order of an interim injunction.