MINATI PRADHAN Vs. AKASH INDIA MULTI COMPLEX LIMITED

JUDGEMENT

(1.) This Civil Miscellaneous Petition involves challenge to the order under Annexures-4 & 5. The order vide Annexure-4 involves dismissal of the interim application under Order 39 Rule 1 & 2 at the instance of the petitioner and the order vide Annexure-5 is dismissal of the appeal as against the order vide Annexure-4 by the appellate authority.

(2.) Short background involved in the case is that the petitioner as the plaintiff filed Civil Suit No.63 of 2015 impleading the present opposite parties and two others as defendants praying therein for a decree for specific performance of contract and further seeking a direction to the defendants to execute and register the sale deed in favour of the plaintiff in respect of suit land within the time fixed by the Court, further on failure of the same to execute and register the sale deed in favour of the plaintiff through the process of Court with an alternative prayer that in the event, the contract is not legally enforceable to direct the defendant Nos.1 & 2 to refund the entire consideration money alongwith 12% interest per annum till its realization and also for cost and other reliefs.

(3.) Assailing the impugned order, learned counsel for the petitioner submitted that for the trial Court finding a prima facie case in favour of the petitioner and for the claim of right over the disputed property by the different parties, one party claiming to have entered into an agreement with vendor, the defendant No.3 being the other party claiming to have purchased the same property from the same vendor, the trial Court instead of rejecting the application under Order 39 Rule 1 & 2 should have allowed the application. Learned counsel for the petitioner on the same analogy also claimed that the lower appellate authority has also failed to appreciate the above aspect of the matter and passed the wrong and illegal impugned order, which requires to be interfered with and set aside.