Chithra Rajesh vs Vidhya Shiju

V.G.Arun, J

Petitioner is the plaintiff in O.S.No.226 of 2019 on the files of the Munsiff's Court, Mavelikkara. The suit is filed for a permanent prohibitory

injunction restraining the defendants from alienating the plaint schedule property and the buildings therein, without participation of the plaintiff, as covenanted in the agreement dated 18.12.2018. As per the averments in the suit, an agreement was executed between the plaintiff and the defendants on 18.12.2018 for jointly investing in the purchase of land and construction of residential buildings and to share the profit received from sale of the land and the building. The profit is to be shared at the rate of 50% for the plaintiff and 25% each to the defendants. In terms of the agreement, two residential buildings were constructed in the properties purchased in the joint names of the respondents. The plaintiff expended Rs.32,00,000/-towards construction of two residential buildings in the property. The properties along with the buildings are scheduled as item Nos.1 and 2 in the plaint.

Contrary to the agreement, the defendants failed to account the expenses incurred for the construction and attempted to alienate item No.1, on completion of the building therein. Hence, the suit.

In this original petition it is stated that, pending the suit, a settlement was arrived at between the parties and item No.1 building was sold based on

the settlement and an amount of Rs.37 lakhs paid to the petitioner. According to the petitioner, she is entitled to get more amounts and was cheated into the settlement by the Counsel, who is to act as mediator as per the terms of the settlement. Apprehending that the respondents may alienate/sell item No.2 without settling her account, petitioner filed an interlocutory application for injunction to restrain the defendants from alienating item No.2.

By Exhibit P4, the court below dismissed the injunction application, mainly on the ground that the description of the property mentioned in the agreement and the interlocutory application, differ. The petitioner has challenged Exhibit P4 and has also sought a direction for expeditious disposal of

Exhibit P6 interlocutory application filed by her, wherein she has sought permission to purchase item No.2 property and the building therein for a fair

and reasonable price.

Sri.R.Krishnaraj, learned Counsel for the petitioner reiterated the averments in the suit and original petition and submitted that for the present, the

petitioner will be satisfied if Exhibit P6 interlocutory application is directed to be considered expeditiously and the sale of item No.2 property kept in

abeyance till such time.

Sri.Shanavas Khan, learned Counsel for the respondents contended that the petitioner has an effective remedy of appeal against Exhibit P4 order. It

is submitted that as on date, the petitioner has not sought any monetary relief against the respondents, without which she cannot seek to restrain the respondents from selling their property. According to the learned Counsel, Exhibit P6 application is ill-motivated and the only purpose is to delay the

sale. As rightly found by the court below, the property mentioned in the agreement and the property to be sold are different properties and the respondents being the absolute owners of the property being sold, there cannot be any interdiction at the instance of the petitioner. It is pointed out

that, sale of item No.2 property is finalised and validity of the stamp papers purchased for the purpose of the sale will expire on 03.08.2021.

From the rival contentions it emerges that the land over which the buildings have been constructed belong to the respondents absolutely. The

petitioner is praying for an injunction against alienation of item No.2 property, on the premise that she is entitled for a share in the profit generated upon sale of the land and buildings. As on date, the suit is for decree of permanent injunction alone, even though the petitioner claims that applications seeking to amend the plaint and to incorporate monetary reliefs are pending. The fact that one of the buildings along with land has been sold is not in

dispute. The trial court has noted the difference in description with respect to item No.2 and the description in the profit sharing agreement executed between the parties, as one of the reasons for dismissing the injunction application. I find no reason to hold the findings in Ext.P4 to be perverse,

warranting interference under the supervisory jurisdiction. Moreover, as rightly contended by the learned Counsel for the respondents, as against

Exhibit P4 order, the petitioner has an efficacious alternative remedy. Hence, the challenge against Ext.P4 is rejected.

Learned Counsel for the petitioner raised an alternative plea that the trial court could be directed to dispose Exhibit P6 application, wherein the

prayer is to allow the petitioner to purchase item No.2 property and the building therein for a fair and reasonable price and to restrain the respondents from alienating item No.2 property till a decision is taken on Exhibit P6. Learned counsel for the respondents submitted that the very maintainability of

Exhibit P6 petition is doubtful, as the court is not conferred with any power to compel the respondents to sell item No.2 property to the petitioner. I

find merit in the objection. It is for the trial court to take a decision on Ext.P6, based on the sustainability or otherwise of the prayer therein.

In the result, the original petition is dismissed without prejudice to the petitioner’s right to seek early disposal of Exhibit P6 application.