Nafr High Court
Case Details
1 2025:CGHC:1619 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MA No. 3 of 2025 1 - Uday Sharma S/o Dani Prasad Sharma, Aged About 48 Years R/o Village Dingapur Baigindabhar, Iti Colony, Tahsil - Road Korba, Present Address - Village Naktikhar, Khasra No. 801, 203/2, 205, Tahsil And District Korba (C.G.). Versus ... Appellant
Legal Reasoning
factors are to be taken into consideration, prima facie case, balance of convenience and irreparable loss. Considering the entirety of the facts of the case in particular, the agreement to sale, which is sought to be executed by the petitioner is of the year 2007 and the Civil Suit was filed after about more than13 years, I do not find there is prima facie case in favour of the appellant and it is also observed by the learned Trial Court. 10. It has to be considered as to how the plaintiff would suffer irreparable loss in spite of the protection enjoyed by him under Section 52 of the Transfer of Property Act, 1882. Hon’ble Supreme Court in the case of Dalpat Kumar vs. Prahlad Singh [(1992) 1 SCC 719] has observed thus: “5. …...Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit. 6. ...The phrases “prima facie case”, “balance of convenience” and “irreparable loss” are not rhetoric 5 phrases for incantation, but words of width and elasticity, to meet myriad situations presented by men's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts are eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience. The respondents can be adequately compensated on their success.” 11. Hon’ble Supreme Court in the case of M.P. Mathur vs. DTC [(2006) 13 SCC 706] has observed thus: “14. The present suit is based on equity. … In the present case, the plaintiffs have sought a remedy which is discretionary. They have instituted the suit under Section 34 of the 1963 Act. The discretion which the court has to exercise is a judicial discretion. That discretion has to be exercised on well-settled principles. Therefore, the court has to consider—the nature of obligation in respect of which performance is sought, circumstances under which the decision came to be made, the conduct of the parties and the effect of the court granting the decree. In such cases, the court has to look at the contract. The court has to ascertain whether there exists an element of mutuality in the contract. If there is absence of mutuality the court will not exercise discretion in favour of the plaintiffs. Even if, want of mutuality is regarded as discretionary and not as an absolute bar to specific performance, the court has to consider the entire conduct of the parties in relation to the subject-matter and in case of any disqualifying circumstances the court will not grant the relief prayed for (Snell's Equity, 31st Edn., p. 366). 12.For the foregoing observation and discussion, I do not find any good ground to interfere with the impugned order, this appeal being sans merit is liable to be and is hereby, set-aside. Sd/- (Parth Prateem Sahu) Judge Dey
Arguments
1 - Sanjay Rohra S/o Shri Parasram Rohra, Aged About 45 Years R/o Beside Sindhi Bhawan Purani Basti, Korba, Tahsil And District Korba (C.G.). 2 - Omprakash Rohra S/o Late Dayal Das Rohra, Aged About 60 Years R/o Avanti Vihar, Anand Niketan, Raipur, Tahsil And District Raipur (C.G.). 3 - Ram Kumar Singh S/o Late Laxminarayan Singh, Aged About 60 Years R/o Gayatri Mandir Road, Bhatapara Balco, Tahsil And District Korba (C.G.). 4 - State Of Chhattisgarh Through District Collector, Korba, District Korba (C.G.). ... Non-Appellant For Appellant : Mr. Yogendra Chaturvedi, Advocate For Non-Appellant : Mr. Pramod Ramteke, Panel Lawyer SB: Hon'ble Shri Parth Prateem Sahu, Judge ORDER ON BOARD 10 /01/2025 1. The appellant has filed this appeal under Order 43 Rule (1) (R) of the Code of Civil Procedure, 1908 questioning the legality and sustainability of the order dated 11.11.2024 (Annexure A/1) passed by the learned Third District Judge, District – Korba (C.G.) in Civil Suit No. 06-A/2021, SHUBHAM DEY Digitally signed by SHUBHAM DEY 2 whereby, the learned Trial Court has dismissed the application filed under Order 39 Rule 1 & 2 read with Section 151 of the Code of Civil Procedure, 1908. 2. Learned counsel for the appellant submits that the appellant/plaintiff has filed the suit for specific performance of contract inter alia on the ground that the Respondents No. 1 & 2 have entered into an agreement to sale the land bearing Khasra No. 380/2 (renumbered as Khasra No. 801) admeasuring 2.56 acres for a sum of Rs. 6,40,000/- and have also paid a sum of Rs. 51,000/- as advance. The agreement was executed on 12.09.2007. Similarly, the Respondents No. 1 & 2 have further entered into an agreement to sale of the land bearing Khasra No. 374/1 and 374/2 admeasuring 2.2 acres of land for a sum of Rs. 5,60,000/- and a sum of Rs. 5100/- was paid as advance on 25.09.2007 and the agreement was executed. 3. He submits that in the agreement there was a clause that it was for the land owner to get the lands demarcated and only after the demarcation report, the sale-deed is required to be executed. The appellant have made several requests to get the land demarcated and execute the sale- deed in his favour, however, after entering into an agreement to sale, the Respondents No. 1 & 2 handed over the possession of the land in dispute and thereafter, the appellant had developed the land for residential purpose by leveling it and the value of the land has now been increased to Rs. 15,00,000/-. Initially, the sale-deed was not executed on the ground that there was some dispute with the third person. However, the land which is subject matter of the civil suit was sold to the Respondent No. 3. the appellant is in possession of the land and therefore, the application for grant of temporary injunction is filed which was erroneously rejected by the learned Trial Court. 3 4. On the other hand, learned counsel for the Respondent/State supports the impugned award. He further submits that the dispute is between the the appellant and the Respondents No. 1 to 3. 5. I have heard learned counsel for the parties and perused the documents placed along with the memo of appeal. 6. Perusal of the documents would show that the Respondents No. 1 to 3/defendants have filed reply to the application on 29.01.2022 wherein, they have categorically denied execution of the agreement to sale, pleading therein that they entered into an agreement to sale for the land bearing Khasra No. 380/2 and Khasra No. 801 admeasuring 2.56 acres and have denied the other pleadings made therein. They have denied the execution of the agreement to sale dated 25.09.2007 stating therein that the stamp paper on which the agreement to sale has been written is a concocted and forged document. 7. It is pleaded that the Respondents No. 1 & 2 have sold the land to the Respondent No. 3, however, the appellant has forcefully taken possession of the land in dispute against which the Respondent No. 3/Defendant has also lodged a report in the concerned police station and before the concerned Superintendent of Police. It is also pleaded that the plaintiff/appellant have not made any attempt to get the sale-deed executed, pursuant to the agreement to sale dated 10.09.2007. 8. Perusal of the copy of the Civil Suit would show that the suit for specific performance based on the agreement to sale of the year 2007 was filed in the year 2021. There is no document placed along with the memo of appeal or before the learned Trial Court to show that before expiry of the period as mentioned in the agreement to sale, the appellant/plaintiff has made any attempt to get the sale-deed executed in his favour. 4 9. For considering the application for grant of temporary injunction, three