Telangana High Court
C. Jangaiah Cherukupally Died vs Peddi Ramesh on 22 November, 2022
Author: Shameem Akther
Bench: Shameem Akther, Nagesh Bheemapaka
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
CIVIL MISCELLANEOUS APPEAL No.457 of 2022
JUDGMENT:(Per Hon'ble Dr. Justice Shameem Akther) This appeal, under Order 43 Rule 1(r) read with Section 151 of Code of Civil Procedure, is filed by the appellants/ defendants, challenging the order and decree, dated 20.09.2022, passed in I.A.No.556 of 2022 in O.S.No.27 of 2019 by the Principal District Judge, Suryapet, wherein the subject Interlocutory Application filed by the appellants/defendants under Order XXXIX Rules 1 and 2 of C.P.C seeking to grant temporary injunction restraining the respondents/plaintiffs from interfering with the possession of the appellants/defendants over the suit schedule property, was dismissed.
2. Heard the learned counsel for the appellants/defendants, learned counsel for the respondents/plaintiffs and perused the record.
3. The facts of the case, in brief, are that the appellants/ defendants are the owners and possessors of the suit schedule property and they agreed to sell the suit schedule property admeasuring Acs.6.13 guntas in Sy.Nos.469/A, 469/Aa, 470/A 2 Dr.SA,J & NBK,J CMA No.457 OF 2022 and 470/Aa, situated at Chivvemla Village and Mandal, Suryapet District, for a consideration of Rs.34,75,000/- per acre. On 22.07.2016, the respondents/plaintiffs entered into an agreement with the appellants/defendants and paid Rs.50,00,000/- towards part sale consideration to the appellants/ defendants and agreed to pay another Rs.50,00,000/- on or before 22.12.2016. But, thereafter, the respondents/plaintiffs failed to perform their part of contract and filed the subject suit on 09.07.2019 seeking specific performance of agreement of sale. On 18.07.2019, when the appellants/defendants were ploughing the suit schedule land to start agricultural operations, the respondents/plaintiffs interfered and tried to damage the cotton seed sown in the suit schedule land. Hence, the appellants/ defendants filed the subject Interlocutory Application in the suit seeking temporary injunction restraining the respondents/plaintiffs from interfering with the possession of the appellants/defendants over the suit schedule property. The Court below vide impugned order and decree dated 20.09.2022, dismissed the subject I.A. Hence, the present appeal.
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4. The learned counsel for the appellants/defendants would contend that in the agreement of sale, dated 22.07.2016 entered into between the parties, there is no mention of delivery of possession and only permission to develop the subject land is mentioned. The respondents/plaintiffs have violated the terms and conditions of the said agreement. The entire sale consideration was not paid within the time stipulated. The possession of the subject land is still with the appellants/ defendants. The Court below erroneously dismissed the subject application and ultimately prayed to allow the appeal by setting aside the impugned order and decree, dated 20.09.2022 and consequently, allow the subject I.A.No.556 of 2022 as prayed for.
5. On the other hand, learned counsel for the respondents/ plaintiffs would submit that the subject suit was filed for specific performance of agreement of sale, dated 22.07.2016. In the said agreement, there is a specific mention that the respondents/plaintiffs (vendees) are allowed to develop the subject land. The respondents/plaintiffs have paid Rs.50,00,000/- as advance amount. As there were disputes among the appellants/defendants and their family members, a 4 Dr.SA,J & NBK,J CMA No.457 OF 2022 suit for partition and separate possession was filed. Some development was made over the subject land. The respondents/plaintiffs (vendees) are in possession of the subject land. Therefore, the appellants/defendants are not entitled for the relief of interim injunction as sought for. The Court below adverted all the material questions that are raised and having analyzed the documentary evidence on record, rightly arrived at a just conclusion. There are no grounds to vary the impugned order and decree and ultimately prayed to dismiss the appeal.
6. In view of the above rival submissions, the points that arise for determination in this appeal are as follows:
1. Whether the appellants/defendants have made out a prima facie case to grant interim injunction in their favour?
2. Whether the balance of convenience is in favour of the appellants/defendants to grant the relief sought in the subject I.A.No.556 of 2022 in O.S.No.27 of 2019?
3. Whether irreparable injury would be caused to the appellants/defendants in the event of refusal to grant injunction?
4. Whether the impugned order and decree, dated 20.09.2022, passed in I.A.No.556 of 2022 in O.S.No.27 of 2019 by the Principal District Judge, Suryapet, are liable to be set aside?
5. To what relief?
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7. POINTS: Ordinarily, the three main principles which govern the grant or refusal of injunction are (a) prima facie case; (b)balance of convenience; and, (c) irreparable injury. In grant and refusal of injunction, pleadings and documents play vital role. In the broad category of prima facie case, it is imperative for the Court to carefully analyse the pleadings and the documents on record and only on that basis the Court must adjudge the existence or otherwise of a prima facie case. 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 plaintiffs, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. Only on weighing competing possibilities or probabilities of likelihood of injury, an injunction would be granted. The Court should not interfere only because the property is a very valuable one. In dealing with such matters, the Court must make all endeavours to protect the interest of the parties by balancing the conveniences and inconveniences. In addition to the basic principles, temporary injunction, being an equitable relief, the discretion to grant such relief will be 6 Dr.SA,J & NBK,J CMA No.457 OF 2022 exercised only when the plaintiff's conduct is free from blame and he approaches the Court with clean hands.
8. In the instant case, the appellants, who are the original owners claimed to be in possession of the subject land admeasuring Acs.6.13 gts in Sy.Nos.469/A, 469/Aa, 470/A and 470/Aa, situated at Chivvemla Village and Mandal, Suryapet District. The said land was agreed to be sold to the respondents/ plaintiffs @ Rs.34,75,000/- per acre. On the date of agreement of sale i.e., on 22.07.2016, an amount of Rs.50,00,000/- was paid by the respondents/plaintiffs as advance amount. The balance sale consideration has to be paid within a period of nine months from the date of sale agreement and it was not paid. But there is a recital in the agreement of sale, dated 22.07.2016, which was marked as Ex.R1, that the respondents/ plaintiffs are entitled to develop the subject land. In the entire agreement of sale, there is no specific mention of delivering the possession of the subject land to the respondents/plaintiffs. The Court below while dealing the subject matter of the Interlocutory application was pleased to record the findings in Paragraph 7 (d) of the impugned order dated 20.09.2022, which reads as follows:
7 Dr.SA,J & NBK,J CMA No.457 OF 2022 "d) Coming to the point of prima facie case of possession of schedule property, agreement itself shows that possession was delivered on the date of agreement itself to the respondents/plaintiffs....."
A perusal of the subject agreement of sale dated 22.07.2016 reveals that the respondents/plaintiffs were permitted to develop the subject land. In the entire agreement of sale, there is no specific mention of delivery of possession of the subject land to the respondents/plaintiffs by the appellants/defendants. So the finding recorded by the Court below as indicated above, is erroneous. As there is no delivery of possession of the subject land in favour of the respondents/plaintiffs and as there is material to substantiate that there is interference by the respondents/plaintiffs and furthermore, as the balance sale consideration is not paid, it can be safely held that the appellants/defendants have made out a prima facie case and balance of convenience is in their favour and if no injunction is granted, they would suffer irreparable injury. It is also relevant to state that the respondents/plaintiffs are claiming delivery of possession over the subject land in terms of the agreement of sale, dated 22.07.2016. In such an event, the respondents/plaintiffs have to pay stamp duty in terms of Section 35(1) of the Indian Stamp Act, 1899, which has not 8 Dr.SA,J & NBK,J CMA No.457 OF 2022 been paid. Non-payment of stamp duty and penalty thereon, the subject document cannot be looked into. Therefore, the Court below erred in not granting interim temporary injunction in favour of the appellants/defendants, as prayed for. Having regard to the totality of the circumstances of the case, we are inclined to grant interim temporary injunction in favour of the appellants/defendants under Order XXXIX Rule 1 and 2 of CPC.
9. In the result, the appeal is allowed and the impugned order, dated 20.09.2022, passed in I.A.No.556 of 2022 in O.S.No.27 of 2019 by the learned Principal District Judge, Suryapet, is set aside. Consequently, the subject I.A.No.556 of 2022 stands allowed and the respondents/plaintiffs are restrained from causing any sort of interference with the possession and enjoyment of the appellants/ defendants over the suit schedule land till the determination of the suit in O.S.No.27 of 2019.
Miscellaneous petitions, if any, pending in this appeal, shall stand closed. There shall be no order as to costs.
______________________ Dr. SHAMEEM AKTHER, J ______________________ NAGESH BHEEMAPAKA, J Date: 22.11.2022 ssp/scs 9 Dr.SA,J & NBK,J CMA No.457 OF 2022