JULIAN D.J. HARRY Vs. P.K. KHANNA

JUDGEMENT

(1.) HEARD learned Counsel for the parties.

(2.) PERUSED the impugned order and the record. The suit was filed by the plaintiff appellant for specific performance of contract dated 10th December, 1980 on 14.1.1994. In the original suit as well as in application for injunction, the original owner P.K. Khana was impleaded as defendant No. 1 whereas subsequent purchaser by registered sale deed from defendant No. 1 which was registered on 10th January, 1994 was impleaded as defendant No. 2. But at the request of the plaintiff appellant, proceeding against the defendant No. 1 P.K. Khanna was dropped on 18th January, 1994 in civil miscellaneous proceedings for grant of injunction. The original non -applicant No. 2 before the trial court filed the reply to the injunction application. The trial court appointed the Commissioner for sight inspection and thereafter hearing the parties dismissed the injunction application of the appellant plaintiff by order dated 24th January, 1994 holding that the plaintiff was not the owner of the property. He has filed the suit for specific performance contract which was filed much more after three years of the agreement for sale and in view of the various judgments, the plaintiff has not acquired any right to seek relief of the injunction against the true owner or the successor to true owner. The trial court also considered the Commissioner's report and observed that even if the plaintiff was visiting for the plot in dispute, he has not acquired any right and thereafter dismiss the application for injunction.

(3.) LEARNED counsel for the respondent vehemently submitted that the proceedings initiated on application for grant of temporary injunction under Order 39 Rules 1 & 2 C.P.C. were dropped by the court against original owner defendant No. 1 at the request of the plaintiff on 18.1.1994. Only on this ground alone, the injunction application of the plaintiff was liable for rejection because of the reason that the defendant No. 1, the original vendor was the necessary party. Even in the application under Order 39 Rules 1 & 2 CPC. according to the learned Counsel for the respondent, the defendant No. 1 was the only person who could have given adequate reply to the entire claim of the plaintiff, by showing the fact with respect to the alleged agreement to sale dated 10th December, 1980 whether it was executed at all or not and the events which took place thereafter till the execution of the sale deed in favour of the defendant No. 2 respondents and handing over the possession by the defendant No. 1 to defendant No. 2. Learned counsel for the respondent also submitted that when the suit on the basis of the agreement for sale deed dated 10th December, 1980 has been filed in the year 1994, after about 14 years then also prima facie no equitable relief can be granted in the form of injunction. Learned counsel for the respondent submitted that the respondent is in possession of the property and when the trial court considered the agreement for sale deed dated 10th December, 1980 and observed that its genuineness is doubtful and after considering the Commissioner report did not find that the plaintiff was in exclusive possession and observed that mere plaintiffs visiting over its open piece of land, which is challenged by the respondent defendant, relief of injunction cannot be granted and it is a sound exercise of judicial discretion by the trial court and is not liable for interference in the appeal.