Rajasthan High Court - Jaipur
Smt. Pushpa Agarwal And Ors. vs Shiv Shankar Suwalka And Anr. on 10 January, 2008
Author: H.R. Panwar
Bench: H.R. Panwar
JUDGMENT H.R. Panwar, J.
1. No one appears for the respondent No. 1 though served. The respondent No. 2 is a formal party and service thereof is dispensed with.
2. The instant civil misc. appeal under Order 43 Rule 1 (r) of the Code of Civil Procedure (for short 'CPC') is directed against the order dated 02.11.2006 passed by the Additional District Judge No. 2, Bundi (for short 'the trial Court'), whereby the application filed by the respondent No. 1 under Order 39 Rule 1 and 2 CPC during pendency of the suit was allowed and the defendant-appellants were restrained to alienate, mortgage, transfer or get such documents registered in respect of the subject matter of the suit property and if any such document is filed, the respondent No. 2 was restrained not to register such documents.
3. I have heard learned Counsel for the appellants and carefully gone through the order impugned as also the record of the trial Court.
4. It is contended by the learned Counsel for the appellants that the document agreement to sale alleged to have been executed on non-judicial stamp of Rs. 100/-, whereas the Rajasthan Stamps Law provides that the stamp duty @ 3% on the value determined is required to be paid and unless the requisite stamp duty is paid, the document is not admissible in evidence. He also relied on the judgment of this Court in Sukhdev Singh v. Baxis Singh and Anr. 2006(2) RLW 1036.
5. From perusal of the order impugned, more particularly while considering the prima-facie case by the trial Court, the trial Court noticed that the defendant-appellants admit that there was an agreement to sale of the land and document for that purpose has been executed on non-judicial stamp of Rs. 100/-. Learned Counsel disputed the signatures on page 1 and 2 of the said agreement.
6. On perusal of the order impugned, it appears that the trial Court noticed that the document agreement to sale running in three pages and all the three pages bear signatures of the defendant- appellants.
7. Be that as it may. The trial Court considered the fact that during pendency of the suit, if the defendant-appellants are permitted to alienate, mortgage or transfer the suit property which is subject matter of the suit, it will create many complications and it will result in multiplicity of the suit on transfer and thereafter on further transfer many parties will join the interest.
8. In such circumstances, in my view the trial Court was justified in holding prima-facie case in favour of the plaintiff-respondent and also decided two other issues of balance of convenience and irreparable loss. Therefore, the order impugned cannot said to be illegal or erroneous in any manner.
9. Therefore, the revision petition has no force and the same is dismissed.
10. However, learned Counsel for the defendant- appellants submits that the defendant-appellants would move before the trial Court for framing issue with regard to the document agreement to sale insufficiently stamped and this issue be decided as preliminary issue.
11. It will be open for the appellant to move before the trial Court and if such a request is made, the trial Court shall proceed in framing of the issues and may decide the preliminary issue, if so requires.
12. The trial Court shall decide the main suit utmost expeditiously and preferably within one year.
13. Learned Counsel for the appellants further submits that the trial Court while deciding the application under Order 39 Rule 1 and 2 CPC has gone on manner as it is finally deciding the controversy.
14. In my view, the apprehension of the counsel for the appellants appears to be unfounded. However, it is made clear that while deciding the application for temporary injunction, whatever observations are made, they are prima-facie and are subject to the decision when the parties adduce the evidence.