LAXMI DEI Vs. SHYAM SUNDAR HANS

JUDGEMENT

(1.) These two appeals have been preferred against the orders refusing to grant interim injunction during the pendency of the suit for specific performance of contract.

(2.) In order to appreciate the submissions made by the learned counsel for the parties, it is necessary to narrate the facts of the case in short. The father of the present appellant filed Title Suit No. 44 of 1994 before the Subordinate Judge, now Civil Judge (Senior Division), Bhubaneswar praying for specific performance of contract or in alternative for recovery of consideration money of Rs. 4.5 lakhs. The case of the plaintiff is that, land measuring Ac. 0.150 decimals out of Ac. 4.360 decimals appertaining to plot No. 1294 under Khata No. 140 situated in mouza Nayapalli, Bhubaneswar, originally belonged to one Dr. Susilnath Bastia who by a registered sale deed dated 20-3-1985 sold the same to defendant No. 1-Dr. Johenes alias Joe Mass. It is alleged that defendant No. 1 while possessing the said property entered into an agreement for sale of the same to the plaintiff on 5-2-1993 and received a sum of Rs. 4.00 lakhs as part payment of the consideration money, from the plaintiff. According to the plaintiff, it was stipulated in the agreement that the said defendant No. 1 will execute a registered sale deed in favour of the plaintiff within six months from the date of the agreement after receiving the balance consideration money of Rs. 50,000/-. The plaintiff further pleaded that it was undertaken by defendant No. 1 that after execution of the agreement, defendant No. 1 will not alienate the said property to any other person so long as the contract subsists and that pursuant to the said agreement, possession of the property was delivered to the plaintiff who is possessing the same. It is alleged that during the pendency of the suit, defendant No. 1 has executed and registered sale deed No. 484 dated 3-2- 1994 in favour of defendant No. 2 who is the sole respondent in M. A. No. 426 of 1995 and respondent No. 1 in F.A.O. No. 174 of 2003. During the pendency of the suit, it appears that defendant No. 2 entered into a collaboration agreement with defendant No. 3 who is respondent No. 2 in FAO No. 174 of 2003 for development of the said land and for raising a market complex. The said defendant No. 3 having applied to be im- pleaded as a party before the Court below, has been impleaded as defendant No. 3 in the suit. All the defendants have entered appearance and filed their respective written statements. Defendant No. 1 has inter alia pleaded that the agreement to sell alleged to have been executed by him is-a forged and fabricated document as he was not present in India but was in USA on the alleged date of execution of the agreement. He has further pleaded that he has sold the said property in favour of defendant No. 2 by registered sale deed dated 3-2-1994 and has delivered possession of the property to defendant No. 2. The case of defendant No. 2 is that after purchase of property from defendant No. 1, he obtained possession of the same from him and the agreement of sale alleged to have been executed by defendant No. 1 is a forged one. Defendant No. 3 after being impleaded as a party while denying the plaint allegations, adopted the written statement filed by defendant No. 2. The original plaintiff i.e. father of the appellant filed Misc. Case No. 63 of 1994 along with the plaint, praying for interim injunction against defendants under Order 39, Rules 1 and 2, CPC. The said Misc. Case was dismissed on 27-7-1995, against which M.A. No. 426 of 1995 was filed. During the pendency of the said M.A., the original plaintiff having expired, his widow Laxmi Dei was substituted on 25-3-1998. The present appellant filed an application before the Court below on 22-4-1999 to be impleaded as a party and was impleaded as a plaintiff. Laxmi Dei widow of the original plaintiff expired on 15-10-2001 leaving the appellant as the sole plaintiff. On 19-8-2002, the appellant filed interim application No. 470 of 2002 before the Court below, under Order 39, Rules 1 and 2, CPC praying therein to restrain the opp. party (Shyam Sundar Hans) from coming upon the disputed land or from raising construction thereon so as to change the nature of the suit land. A counter to the said interim application was filed by the opposite parties. After hearing the parties on the said application for injunction, the Court below by order dated 22- 2-2003 dismissed the same. Being aggrieved by the said order, the appellant has preferred F.A.O. No. 174 of 2003.

(3.) It is, therefore, clear that both M.A. Nos. 426 of 1995 and F.A.O. No. 174 of 2003 have been filed against the two separate orders passed in two separate applications for interim injunction in the same suit rejecting the prayer to grant interim injunction. The prayers made in both the applications before the Court below were similar.