BALURAM Vs. RAM KISHORE YADAV

JUDGEMENT

(1.) THE present appeal has been filed by the appellant -defendant under Order XLIII Rule 1 of CPC challenging the order dt. 19.5.12 passed by the Addl. District & Sessions Judge No. 5, Jaipur Mahanagar, Jaipur (hereinafter referred to as 'the trial court') in Civil Misc. Case No. 137/11, whereby the trial Court has granted the application of the respondent -plaintiff seeking temporary injunction under Order XXXIX Rule 1(r) of CPC. It has been sought to be submitted by the learned counsel for the appellant that the amount received by the appellant from the respondent towards the agreement in question was already refunded to the respondent on 2.5.11 in presence of the witnesses and the agreement in question was cancelled. According to him the order passed by the trial Court is unjust and improper.

(2.) IN the instant case, the respondent -plaintiff has filed the suit for specific performance of the agreement dt. 12.1.09 in respect of the suit property. The appellant -defendant has not disputed the execution of the said agreement, however, has taken up the contention that subsequently the said agreement was cancelled on 2.5.11 and the amount received by the appellant has been paid back to the respondent. It appears that the appellant has not produced any receipt to show that the amount was paid back to the respondent and the agreement in question was cancelled. Be that as it may, it will be a matter of evidence to be decided at the time of the suit, as to whether the agreement in question was cancelled by the appellant or not. Pending the suit it is necessary that the appellant does not transfer, sell or create any third party interest in the suit property in order to avoid further multiplicity of the proceedings. In that view of the matter, the Court, does not find any substance in the present appeal. The appeal is, therefore, dismissed.