FARUKH AHMED Vs. ABDUL QAYYUM

JUDGEMENT

(1.) By way of filing this Civil Miscellaneous Appeal under Order 43 Rule 1 of the Code of Civil Procedure, the appellant has assailed the impugned order dtd. 1/6/2024 passed by the learned Additional District Judge, Makrana, District Nagaur, in Civil Misc. Case No. 51/2024, whereby the learned Court below has rejected the application filed by the plaintiff under Order 39 Rules 1 and 2 CPC seeking temporary injunction.

(2.) The breif facts of present case is that the appellant-plaintiff filed a suit for specific performance of the Agreement dtd. 21/12/2017 and for permanent injunction against the respondent-defendants, stating that the defendants are joint license-holders of Mine No.158 admeasuring 231 feet x 30 feet in Gunawati range of Makrana, whose quarry license stands renewed up to 31/3/2025. Defendants Nos.1 to 3 and their late brother Gulam Nabi collectively hold half share i.e. 115.5 feet x 30 feet area in the said mine, which lies in two parts measuring 78 feet and 37.5 feet respectively. Out of this, defendants Nos.1 to 3 entered into an agreement with the appellant on 21/12/2017 for excavation and sale of stone in a 28-feet portion, agreeing to share income in the ratio of 55:45 in their favour and of the appellant respectively, after taking Rs.10,00,000.00 as security. The agreement provided that the defendants would first remove the debris and show clear limits/boundaries of the mine to the appellant before commencement of work and would bear all administrative responsibilities, with the tenure of the agreement fixed at four years commencing from 1/4/2018, extendable till settlement of advance money.

(3.) The appellant contended that the defendants failed to remove the debris and to demarcate the mine limits, due to which excavation could not begin from 1/4/2018 and even during 2019, causing loss of over one year. Later, during 2020, the defendants restrained the appellant from excavation, citing the COVID-19 pandemic and internal disputes over boundary demarcation, which fact was acknowledged in another agreement dtd. 15/10/2021 executed between the appellant and nephews of the defendants, recording that the mine could not be handed over earlier owing to unsettled borders among the brothers. The appellant asserted that the four-year tenure never effectively commenced and, under condition No.23 of the Agreement, the right to excavate continues until repayment of the entire advance of Rs.49,00,000.00 received by the defendants in several tranches. It was alleged that under conditions No.23 and 25, the defendants were to repay the advance from 25% of their 55% share in sales proceeds, which they failed to do. The appellant also pointed out that Mine No.158 had been ordered to be closed by the Mining Engineer under Rule 76 of the RMMCR, 2017 by order dtd. 26/10/2020 and remained non-operational until 29/8/2023, when defendant Mohammed Rafiq applied for reopening. Subsequently, a fresh site inspection report dtd. 20/2/2024 directed that operations remain closed in the unsafe area towards the north. The appellant alleged that instead of honouring obligations, defendant Abdul Qayyum filed a frivolous civil suit (No.28/2024) and obtained an interim injunction dtd. 22/3/2024 by misrepresenting facts about the agreement. Upon learning of the said injunction, the appellant filed the present suit along with an application under Order 39 Rules 1 and 2 CPC, seeking restraint against the defendants from mining or selling stone in the agreement area.