ORDER 39 RULE 1 &2 - SPECIFIC PERFROMANCE SUIT - NOT TO DEMOLISH OR TO CONSTRUCT ANY BUILDING PENDING SUIT - admittedly by the time the application was filed, substantial portion of the construction was completed. Even assuming that the entire construction is completed, it will not cause any loss or prejudice to the appellant. As rightly observed by the Court below that in the event the appellant succeeds in the suit, the respondents have to execute a sale deed along with the structures. Moreover, when the respondents have given an undertaking in the counter that they are not going to alienate the schedule property to any third parties and they have no intention to alienate the same, the apprehension of the appellant is absolutely baseless. Therefore, there are no grounds to interfere with the well considered order passed by the Court below.

AP HIGHCOURT

THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI

CIVIL MISCELLANEOUS APPEAL No.168 of 2020

Thumati Venkata Suresh Babu

-VS-

Kavuri Madhava Rao,

ORDER:-

 Challenging the order dated 16.07.2020 passed in I.A.No.146

of 2020 in O.S.No.31 of 2018 on the file of the Court of X

Additional District & Special Sessions Judge, Krishna at

Machilipatnam, this appeal has been filed by the appellant /

plaintiff.

2. The appellant, who is the plaintiff has filed the suit in

O.S.No.31 of 2018 for specific performance of agreement of sale

dated 05.07.2011.

3. The case of the appellant / plaintiff is that late Kavuri

Venkateswara Rao for the purpose of family needs offered to sell

the suit schedule property to the plaintiff for a sum of Rs.20 lakhs

and the plaintiff paid an amount of Rs.12 lakhs as advance on the

same day itself and the balance amount has to be paid on or before

05.07.2013. On 03.07.2013 the petitioner has paid an amount of

Rs.6 lakhs, out of Rs.8 lakhs. Later, the father of defendants died

on 17.03.2014. Subsequently, when the defendants are evading to

receive the balance of sale consideration, the plaintiff filed the suit.

4. During pendency of the suit, I.A.No.146 of 2020 is filed

seeking temporary injunction restraining the 1st respondent from

demolishing any part of the plaint schedule building or raising any

new construction in the schedule property pending disposal of the

suit. The Court below after hearing both parties, dismissed the

application on the ground that admittedly as on the date of filing of

the petition substantial portion of the construction is completed, 

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without expressing any merits of the rival parties in the suit,

considering the conduct of the petitioner in approaching the Court

almost five years from the date of endorsement and seven years

from the date of agreement of sale, there is no balance of

convenience in favour of the petitioner. The Court below has also

observed that if the 1st respondent continues to make construction,

in the event of succeeding in the suit, the petitioner is entitled for a

registered sale deed in respect of suit schedule property with

possession including any constructions which are made pending

disposal of the suit.

5. Learned counsel for the appellant submits that if the

respondents are permitted to raise the construction, it would cause

irreparable loss to the appellant and there is every possibility of

alienating and creating third party interest. Further, it is stated

that the Court below has failed to appreciate that there is prima

facie case and balance of convenience in favour of the appellant.

6. Learned counsel for the 1st respondent would submit that

the agreement of sale is of the year 2011 and in fact by the time of

filing the application substantial portion of the construction is

completed. He submit that it is specifically averred in the counter

filed in I.A. before the Court below that the respondents never

made any attempt to alienate the plaint schedule property pending

disposal of the suit and further they undertook that they will not

alienate the schedule property or enter into any agreement with

third parties in future till the disposal of the suit. Learned counsel

for the 1st respondent would submit that the construction is made

after obtaining necessary permission from the Municipality. 

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7. Having heard the learned counsel for the appellant and

learned counsel for the 1st respondent, admittedly by the time the

application was filed, substantial portion of the construction was

completed. Even assuming that the entire construction is

completed, it will not cause any loss or prejudice to the appellant.

As rightly observed by the Court below that in the event the

appellant succeeds in the suit, the respondents have to execute a

sale deed along with the structures. Moreover, when the

respondents have given an undertaking in the counter that they

are not going to alienate the schedule property to any third parties

and they have no intention to alienate the same, the apprehension

of the appellant is absolutely baseless. Therefore, there are no

grounds to interfere with the well considered order passed by the

Court below.

8. In the result, the Civil Miscellaneous Appeal is dismissed.

No order as to costs.

 As a sequel, pending miscellaneous petitions, if any, shall

stand closed.

___________________________________

JUSTICE LALITHA KANNEGANTI

21st October, 2020

PVD

 

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THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI

CIVIL MISCELLANEOUS APPEAL No.168 of 2020

21st October, 2020

PVD