Indian Kanoon - Search engine for Indian Law

Abhay Manohar Sapre, J.

1. Leave granted.

2. The plaintiff filed two suits, one for specific performance of agreement and other for grant of permanent injunction in relation to the suit house. The trial court vide common judgment and decree dated 16.10.2001 dismissed both the suits. The first appellate court, i.e., the High Court, in appeal, by impugned judgment and decree dated 08.09.2011 reversed the judgment and decree of the trial court and decreed both the suits in appeal, against the defendants. Being aggrieved by the judgment and decree of the High Court, Defendants 1 and 3 have approached this Court in the instant civil appeals.

9. On 07.01.2000, the plaintiff filed a civil suit being OS No. 223/2000, initially against 3 defendants for seeking permanent injunction restraining the defendants jointly and severally from interfering in plaintiff's possession over the suit house. In substance, case of the plaintiff was that she entered into an agreement on 15.02.1989 with defendant no. 2 to purchase the suit house for Rs. 3,50,000/- and paid a sum of Rs. 50,000/- to defendant no. 2 by way of advance towards the sale consideration. Later, the plaintiff further paid the balance consideration of Rs. 3 Lacs towards the sale price and obtained receipts acknowledging the payment so made. It was alleged that the plaintiff was accordingly placed in actual physical possession of the suit house and since then she has been in possession of the suit house. It was alleged that she also made some improvements therein by spending money and is paying electricity and water charges etc. It was further alleged that the plaintiff was and has always been ready and willing to perform her part of the agreement to get the sale deed executed in her favour after having performed her part of the contract. However, defendant no. 2, for the reasons best known to her, did not execute the sale deed despite having received the full sale consideration from the plaintiff. It was alleged that defendant no. 1, who is a total stranger to the suit house and having no right, title and interest in the suit house, on 2.1.2000 visited the suit house along with defendant no. 2 and some other unwanted elements and threatened the plaintiff to dispossess her from the suit house. It was also alleged that on 8.1.2000, defendant nos. 1 and 2 again visited and attempted to assault the plaintiff and unsuccessfully attempted to commit trespass in the suit house.

10. On seeing the hostile attitude of defendant nos. 1 and 2 and their associates, the plaintiff immediately lodged a complaint in the concerned police station. Since police authorities did not take any action, which was required of, the plaintiff filed the aforesaid civil suit for permanent injunction restraining the defendants from interfering in her peaceful possession over the suit house. It was submitted that the plaintiff has a prima facie case, so also the balance of convenience and irreparable loss in her favour, which entitles her to claim permanent injunction against the defendants in relation to the suit house. The plaintiff also averred that she reserved her right to file a suit for specific performance of agreement against the defendants.

17. The trial court consolidated both the suits for trial. Issues were framed. Parties adduced evidence. The trial court vide judgment/decree dated 25.8.2009 though answered some issues in plaintiff's favour but eventually dismissed the civil suits. It was held that the agreement dated 15.02.1989 was executed between the plaintiff and defendant no. 2 for sale of suit house; that the plaintiff was not placed in possession of suit house pursuant to agreement in question; that the plaintiff was not ready and willing to perform her part of the agreement; that suit is barred by limitation; that the plaintiff was not entitled to claim the relief for specific performance of agreement; that the plaintiff was not entitled to claim the relief for grant of permanent injunction; that defendant no. 1 is a bona fide purchaser of the suit house for value; that the plaintiff was not entitled to challenge the sale deed dt. 9.2.1998, that the suit was hit by the bar contained in Order II Rule 2 of CPC because the plaintiff did not obtain leave to file second suit for specific performance while filing the first suit for grant of permanent injunction against the defendants in relation to the suit house.