ANIL SINGH Vs. NIMAI GHOSE

JUDGEMENT

(1.) 1. This Misc. appeal, at the instance of the plaintiff -appellant is directed against the order dated 19.1.1998 passed by Subordinate Judge IV, Jamshedpur, in the District of Singhbhum (East) in Title Suit No. 35 of 1996 vacating the order of injunction dated 17.10.1996 in purported exercise of jurisdiction under Order XXXIX, Rule 4 of the Code of Civil Procedure (for short 'the Code') at the instance of defendant No. 1(a).

(2.) The facts of the case lie in a narrow compass. The plaintiff -appellant filed the aforesaid suit for specific performance of contract for sale against the Principal defendant namely, Nimai Ghose. The plaintiff's case is that defendant No. 1 sold an area of 216 Sq. ft. with a Kutcha structure thereon at TISCO'S Holding No. 158, Sakchi New Planning Area, in the town of Jamshedpur to the plaintiff by a registered sale deed dated 25.4.1995 and put him in possession of the same. After purchase the plaintiff demolished the old structure and constructed pucca building over it and came in possession of the same. Subsequently defendant No. 1 being in urgent need of money further offered to sell the plaintiff an additional area of 1800 sq. ft. in continuation of the existing building of the plaintiff. The plaintiff accepted the said offer and entered into written agreement on 16.5.1995 for the purchase of the said property on consideration of Rs. 6,00,000/ - (Rupees Six lakhs), out of which a sum of Rs. 2,00,000/ - Was paid as an earnest money. It was agreed in the said agreement that the balance consideration would be paid on the registration of the sale -deed. The plaintiff's further case is that on 22.6.1995 defendant No. 1 received a further sum of Rs. 2,00,000/ - and a receipt to that effect was executed by the defendant No. 1. On 6.11.1995, defendant No. 1 again received a further sum of Rs. 1,50,000/ - and executed third agreement -cum -money receipt. Only balance consideration of Rs, 50,000/ - to be paid at the time of registration of the sale -deed which was to be done by the first week of December, 1995, The plaintiff's case is that on 9th December, 1995, a registered notice through advocate was sent to the defendant No. 1 requesting him to execute and registered the Sale deed, but on receipt of the notice, defendant No. 1 hurriedly started construction on the suit land without giving any reply. The plaintiff, therefore, filed the aforesaid suit claiming a decree for specific performance of contract and in the alternative a decree for refund of the earnest money together with interest. The plaintiff also sought a decree for a permanent injunction restraining the defendant No. 1 from making any construction. The plaintiff -appellant then filed an application under Order XXXIX, Rules 1 and 2 of the Code for grant of temporary injunction restraining the defendant from making any construction. In the said application it was alleged that defendant No. 1 along with his brother Nimai Ghose and sister Namita Ghose had assigned the suit land in favour of one Kundan Verma and decided to make construction over the suit land. The said prayer of the plaintiff -appellant was opposed by defendant No. 1 by filing a rejoinder. The learned Subordinate Judge, Jamshedpur after hearing the parties on the petition for grant of temporary injunction passed final order on 17.10.1996, whereby the petition for temporary injunction was allowed and defendant No. 1 was restrained from making any further construction on the suit land, either personally or through contractor or any agent till the disposal of the suit. Defendant No. 1 challenged the aforesaid order dated 17.10.1996 by filing an appeal before this Court being M.A. No. 2 of 1997 (R). The said appeal was eventually dismissed by this Court in terms of the judgment and order dated 10.7.1997. It appears that thereafter said Kundan Verma was impleaded as proforma defendant No. 1(a) in the suit who filed his written statement. However, on 4.9.1997 the said defendant No. 1(a) Kundan Verma filed a petition under Order XXXIX, Rule 4 read with Section 151 of the Code before the Court below seeking a prayer for cancellation/variation of the injunction order dated 17.10.1996. The said petition was opposed by the plaintiff -appellant by filing a rejoinder. The Court below after hearing the parties by the impugned order allowed the petition filed by Kundan Verma and vacated the order of temporary injunction granted in favour of the plaintiff -appellant and hence this appeal.

(3.) Mr. Debi Prasad, learned Senior Counsel appearing on behalf of the appellant assailed the impugned order as being illegal and wholly without jurisdiction. Learned Counsel firstly submitted that the Court below gravely erred in vacating the order of injunction under Order XXXIX, Rule 4 of the Code which does not at all apply in the facts and circumstances of the case. Learned Counsel submitted that the Court below has committed seriously error of law in holding that defendant No. 1(a) become the owner of the property and further that the plaintiff -appellant has claimed for alternative relief for refund of money in the suit. Therefore, the order of injunction is liable to be vacated. Learned Counsel submitted that the learned Court below completely misconstrued and misappreciated the facts and law involved in the case. On the other hand, Mr. M.M. Banerjee, learned Counsel appearing on behalf of the defendant -respondent submitted that the plaintiff -appellant by misrepresentation of the fact obtained the order of temporary injunction, inasmuch as the plaintiff was aware of the fact that defendant No. 1(a), namely, Kundan Verma was making construction of the building, but he was not made party in the suit. Learned Counsel further submitted that the construction of building fully completed and portion of the building have been allotted to different allottees who have come in possession of the same. Question of further construction of building does not arise. Learned Counsel lastly submitted that defendant No. 1(a) is not going to make any further construction and, therefore, the order of injunction was. rightly vacated by the Court below when it came to the notice that was Kundan Verma who was making construction of the building.