Rajasthan High Court - Jaipur
Rakesh Makwana S/O Kailash Chand ... vs Vishant Infra Projects Llp on 9 April, 2019
Author: Sabina
Bench: Sabina
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 1420/2019
Rakesh Makwana S/o Kailash Chand Makwana, B/c Gujrati Darji,
Resident Of Bhawani Mandi, District Jhalawar (Raj)
----Appellant
Versus
Vishant Infra Projects Llp, 142 B-1 Aligance Apartment Ramgali
Number 3 Rajapark Jaipur Through Partner Sidharth Jain S/o
Dilip Jain B/c Jain Mahajan Vashundhara Vihar Colony, Bhawani
Mandi Tehsil Pachpahad District Jhalawar
----Respondent
For Appellant(s) : Mr. Rohit Khandelwal Adv.
HON'BLE MRS. JUSTICE SABINA Judgment / Order 09/04/2019 Appellant has filed this appeal challenging the order dated 11.10.2018, whereby, application moved by the appellant under Order 39 Rule 1 and 2 read with Section 151 Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC'), was dismissed.
Learned counsel for the appellant has submitted that the property-in-question was owned by Shobhagmal Jain. Appellant had agreed to purchase the property-in-question from the original owner vide agreement dated 05.01.2017. At the time of execution of agreement to sell-in-question, appellant had paid Rs.9,00,000/- by way of earnest money to the seller. Thereafter, original owner executed Power of Attorney in favour of his son. Son of the owner executed sale deed in favour of the respondent on 19.06.2018. Appellant filed a suit for cancellation of the sale deed and for specific performance of agreement to sell executed in his favour. (Downloaded on 27/06/2019 at 11:19:14 PM)
(2 of 3) [CMA-1420/2019] Original owner in his reply has admitted the execution of agreement to sell in favour of the appellant and has also stated that his son has wrongly sold the property-in-question to the respondent. Original owner has submitted that he is ready to pay the sale consideration to the subsequent purchaser. Hence, the application moved by the appellant for relief of Temporary Injunction was liable to be allowed.
In the present case, the owner of the property-in-question had executed agreement to sell in favour of the appellant. However, son of the owner, on the basis of Power of Attorney, executed sale deed in favour of the respondent. Respondent can be, prima-facie, said to be bona-fide purchaser for consideration and has become the owner of the property-in-question on the basis of the registered sale deed executed in his favour. Appellant has filed suit for cancellation of the sale deed executed in favour of the respondent and seeking relief of specific performance of agreement to sell executed in his favour by the seller.
Along with the suit, an application for Temporary Injunction was filed by the appellant.
At the stage of deciding the application for Temporary Injunction, the court is required to see as to whether plaintiff has a prima-facie case and balance of convenience in his favour and in case, the Temporary Injunction is not granted in favour of the plaintiff, he would suffer an irreparable loss.
However, in the present case, respondent can be said to be a bona-fide purchaser for consideration. Hence, in case Temporary Injunction is granted in favour of the appellant, respondent would suffer an irreparable loss as he would not be able to enjoy the property purchased by him in the manner he liked. Moreover, (Downloaded on 27/06/2019 at 11:19:14 PM) (3 of 3) [CMA-1420/2019] principle of Lis Pendens would apply. In case the suit filed by the appellant is decreed, lower court can issue necessary directions in favour of the appellant in view of the principle of Lis Pendens.
In the facts and circumstances of the present case, learned Lower Court had, thus, rightly dismissed the application moved by the appellant under Order 39 Rule 1 and 3 and 151 CPC for relief of Temporary Injunction. No ground for interference by this Court is made out.
Dismissed.
(SABINA)J. S.Kumawat-45 (Downloaded on 27/06/2019 at 11:19:14 PM) Powered by TCPDF (www.tcpdf.org)