CHUNNI RAM Vs. BADHO AND ORS.

JUDGEMENT

(1.) APPALLED by the impugned order dated 3rd December 2012, passed by learned Addl. District Judge No. 2, Nohar, District Hanumangarh, appellant -plaintiff has laid this appeal under Order 43 Rule 1(r) of the Code of Civil Procedure 1908 (for short, 'CPC'). By the order under challenge, the learned Court below has rejected the application of the appellant under Order 39 Rule 1 & 2 CPC for grant of temporary injunction in a suit for specific performance of contract.

(2.) THE bare necessary facts, for adjudication of this appeal, are that the appellant -plaintiff filed a civil suit against first respondent Smt. Badho alias Badu for specific performance of contract, inter -alia, on the ground that first respondent agreed to sale agricultural land to the appellant measuring 56 bighas and 7 biswas being part of Khasra No. 23 & 26 located at village Jorawarpura and executed an agreement to sale in his favour. As per agreement, appellant -plaintiff paid a substantial amount of consideration to the tune of Rs. 90,000/ - as against total amount of consideration Rs. 1,04,000/ -. It is also averred that as part performance of the contract, possession of the land is also handed over to the appellant. Referring to yet another agreement, reiterating agreement dated 24th February 1994, the appellant has pleaded in the plaint that on 24th May 1994 the first respondent in the form of ratification of earlier agreement executed yet another agreement after accepting consideration amount of Rs. 10,000/ - and as such the remaining consideration amount was a petty sum of Rs. 4,000/ - only. As per the version of the appellant, after execution of agreement to sale, first respondent shifted her permanent abode to District Firozpur (Punjab) and that being so sale -deed could not be registered and on her assurance that as and when she would return back to Nohar for registration of the sale -deed, appellant waited for her return. In order to show cause of action, the appellant -plaintiff has averred that on 24th March 2012 the respondent refused to execute sale -deed in adherence of the agreement to sale and that has prompted him to file the suit for specific performance of contract. Before this Court, at the instance of appellant, Begh Raj was impleaded as respondent. Along with the suit, the appellant also preferred an application under Order 39 Rule 1 & 2 CPC for temporary injunction praying therein that during pendency of the suit the first respondent be restrained from further alienating the suit property.

(3.) THE learned Court below, after hearing the rival parties, noticed that the appellant has failed to establish prima facie case in his favour for grant of temporary injunction. Further, taking note of the conduct of the appellant in concealing a material fact about launching litigation before the revenue courts for declaring him Khatedar tenant, on the strength of plea of adverse possession, the learned Court below has found that appellant has not approached the Court with clean hands and therefore he is not entitled for temporary injunction. The learned Court below has also taken cognizance of Section 52 of the Transfer of Property Act, wherein principle of lis pendens is envisaged, and eventually found that there is no prima facie case in favour of appellant for grant of temporary injunction. Switching on to the other ingredients, viz., balance of convenience and irreparable loss, the learned Court below has found that both these ingredients are also conspicuously missing, and in these situations declined the relief of temporary injunction.