SBCMA No.1236/2008
Badriram Jakhad Vs. Narayan Ram
1
SBCMA No.1236/2008
Badriram Jakhad Vs. Narayan Ram
DATE OF ORDER : - 19.9.2008
HON'BLE MR. PRAKASH TATIA, J.
Mr.Rameshwar Hedau, for the appellant.
Mr.RK Thanvi, for the respondent.
Heard learned counsel for the parties.
The appellant is aggrieved against the order dated
13.8.2008 by which the trial court in civil misc case
no.48/2008 dismissed the appellant’s application for grant
of injunction filed under Order 39 Rule 1 and 2 CPC in the
suit for specific performance of contract and injunction.
According to plaintiff himself there is contract for
purchase of the property which is dated 16th Nov., 1994 and
it is admitted that this contract is oral agreement. The
consideration was paid of Rs.1,40,000/- for that also,
neither there is receipt nor it was paid by cheque.
According to learned counsel for the appellant,the
appellant’s possession is admitted. However, the
respondent obtained a frivolous ex-parte decree and wants
to dispossess the appellant from the property in dispute.
SBCMA No.1236/2008
Badriram Jakhad Vs. Narayan Ram
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The appellant’s application for setting aside ex-parte decree
was rejected by the trial court. However, its appeal is
pending before the court.
Since it is a case of specific performance of contract of
the year 1994 for which suit has been filed in the year 2008
and there is no documentary evidence evidencing
agreement for sale nor there is written proof of making
payment of huge amount of Rs.1,40,000/- by the plaintiff to
the defendant and the affidavit of one of the alleged partner
of the defendant supporting plaintiff is of no consequence. If
the trial court has refused the injunction after taking note of
these facts, this count finds no illegality in the impugned
order. Learned counsel for the appellant relied upon the
judgment of the Panjab and Harayana High Court delivered
in the case of Hans Raj & Anr. Vs. Banta Ram & ors
reported in 2007(4) CCC 693 (P&H) wherein it has been
held that prospective vendee is entitled to protect his
possession in part performance of the agreement to sell.
The said case has no application to the facts of this case.
At this stage, the plaintiff prima facie failed to substantiate
SBCMA No.1236/2008
Badriram Jakhad Vs. Narayan Ram
3
his contention by any cogent evidence, may it be of prima
facie nature.
In view of the above, I do not find any merit in this
appeal and the same is hereby dismissed.
(PRAKASH TATIA), J.
c.p.goyal/-