SMT. KANAKALATA PANDA Vs. SRI ASHOK KUMAR SINHA

JUDGEMENT

(1.) The appellant-plaintiff in this appeal seeks to assail the order dated 16.05.2014 passed in I.A. No. 39 of 2014 arising out of C.S. No. 42 of 2014-I wherein the learned Civil Judge (Senior Division), Jaleswar rejected the application filed under Order 39 Rules 1 and 2 read with Section 151 the C.P.C. praying therein to restrain the defendant no. 1 from alienating the suit schedule land.

(2.) The case of the appellant-plaintiff, in short, is that the suit schedule land belongs to defendants., who are recorded tenants. The defendant nos. 2 to 9 had executed one general Power of Attorney in favour of respondent-defendant no. 1 on 7.05.2010 to look after and manage the suit land. In that capacity, the respondent-defendant no. 1 entered into an agreement for sale of the suit land to the appellant-plaintiff on 24.12.2013 on receipt of part consideration amount to the tune of Rs. 80,000/- and the sale consideration money was fixed at Rs. 23,50,000/-. It was argued between the parties that the sale deed will be executed within a period of forty-five days. Accordingly, the appellant-plaintiff after arranging the sale consideration requested the respondent-defendant no. 1 to execute and register the sale deed to which the respondent-defendant no. 1 did not pay any heed. To show her readiness and willingness to perform her part of contract, the appellant-plaintiff also sent a notice to respondent-defendant no. 1 through her Advocate on 15.02.2014 which yielded no result. On the other hand, the respondent-defendant no. 1 refused to execute and register the sale deed. Hence, the appellant-plaintiff filed a suit praying for a decree of specific performance of contract directing the defendants to execute and register the sale deed in respect of the suit land by receiving the balance consideration amount of Rs. 22,70,000/- within a stipulated period and on failure of the defendants, to execute and register the sale deed through Court on depositing the balance consideration amount. She also prayed for a decree of permanent injunction to restrain the defendants from alienating the suit property and changing the nature and character of the same and for cost. The appellant-plaintiff reiterating the averments made in the plaint also filed a petition under Order 39 Rule 1 and 2 read with Section 151 of the C.P.C. being I.A. No.39 of 2014, praying therein to restrain the respondent-defendant no. 1 from alienating the suit land and changing the nature and character thereof during pendency of the suit.

(3.) The respondent-defendant no. 1 filed his show cause denying the averments made in the plaint and stating, inter alia, that the alleged agreement dated 23.12.2013 was a forged, fabricated and fraudulent document. He had never signed the alleged agreement. The agreement in question was not registered and required stamp duty has not been paid on it. Hence, the same is not admissible in the eye of law. He also denied to have agreed to sell the suit land for a consideration of Rs. 23,50,000/- as alleged. It is further asserted that the respondent-defendant no. 1 had got prior acquaintance with the appellant-plaintiff and her husband. For treatment of her husband, the appellant-plaintiff and her husband had taken a hand loan from respondent-defendant no. 1, but were not in a mood to repay the same. When the respondent-defendant no. 1 threatened to lodge an F.I.R. against them, they deposited the amount in his bank account. To take revenge, they have prepared a fraudulent agreement basing on which they filed a suit to harass the defendant no. 1. It was further alleged that the defendants had no necessity to sell the suit land. Therefore, the appellant-plaintiff has no cause of action to file the suit. It was further alleged that since the respondent-defendant no. 1 is suffering from cancer and is not in a position to go to Jaleswar to purchase the Stamp Paper for preparing the alleged agreement. Hence, he prayed for dismissal of the petition.