Joaquim Inacio Manuel Dias vs Milagres Fernandes and his wife, Mrs. Sebastiana Da Silva Fernandes and Miguel Afonso

F.M. Reis, J.—Heard Shri N. Sardessai, learned Counsel appearing for the Appellant, Shri M. P. Almeida, learned Counsel appearing for the Respondent nos. 1 to 3 and Shri Pangam, learned Counsel appearing for the Respondent no.4. The above Appeal challenges the Order passed by the learned Civil Judge, Senior Division, Vasco da Gama, whereby an application for temporary injunction filed by the Appellant came to be rejected.

Briefly, the facts of the case are that the Appellant has filed a suit for specific performance of an Agreement in respect of the property surveyed under no. 55/5 and 56/1 of Velsao Village. It is the contention of the Appellant, that an Agreement for sale came to be executed in February, 2000, executed by the Power of Attorney holder of the Respondent nos. 1 and 2 in favour of the Appellant. It is further their case that they are entitled for specific performance and, consequently, filed the suit for specific performance. The Respondents have disputed the said Agreement and pointed out that no such Agreement was executed on behalf of Respondent nos. 1 and 2 nor that the Respondent no.4 was authorised to enter into such Agreement. It is further their case that the alleged consideration referred to in the Agreement has not been paid to the Respondent nos. 1 and 2 and that the said Respondents have no connection whatsoever with the Appellant. Pending disposal of the suit, the Appellant filed an application for temporary injunction to restrain the Respondent nos. 1 to 3 from creating any third party rights and from changing the nature of the suit property. The learned Judge whilst passing the impugned Judgment, has come to the conclusion that the Appellants have, prima facie, not established the Agreement executed in their favour. The learned Judge has further found that the alleged consideration referred to in the Agreement has not been established to have been paid to the Respondent nos. 1 and 2. The learned Judge further found that the alleged sale of the portion of the property agreed to be sold is itself vague and further doubted the authenticity and/or correctness of the said Agreement.

Shri Sardessai, learned Counsel appearing for the Appellant has pointed out that the learned Judge has misconstrued the evidence and documents on record and committed an error whilst passing the impugned Judgment. Learned Counsel further pointed out that the learned Judge has come to a perverse finding whilst passing the impugned Order. Learned Counsel has further pointed out that in case the suit for specific performance is decreed in favour of the Respondents, great irreparable loss shall occasion to the Appellant in case the Respondents are allowed to change the nature of the property. Learned Counsel further pointed out that the Respondent nos. 1 and 2 already sold the property to the Respondent no.3 and there is every apprehension that the Respondent no.3 may change the nature of the suit property.

On the other hand, Shri M. P. Almeida, learned Counsel appearing for the Respondent nos. 1 to 3, has supported the impugned Judgment and pointed out that the learned Judge has rightly appreciated the evidence on record and has come to the conclusion that there is no prima facie case in favour of the Appellants. Learned Counsel further pointed out that the Agreement itself is a doubtful transaction as no such Agreement was executed by the Respondent nos. 1 and 2 nor the Respondent no.4 was authorised to enter into any Agreement in favour of the Appellant. Learned Counsel further pointed out that the Agreement itself is vague and, as such, grant of specific performance of a vague description of the property does not arise at all. Learned Counsel further points out that any construction carried out by the Respondent no.3 during the pendency of the Suit shall be subject to the result of the Suit. Learned Counsel has taken me through the impugned Judgment and submits that the impugned order is a discretionary Order and no interference is called for by this Court.

I have considered the rival contentions of the learned Counsel and on perusal of the material on record and the impugned Judgment, I find that the learned Judge after appreciating the evidence on record has, prima facie, come to the conclusion that there is no case made out by the Appellant for grant of any temporary injunction. The learned Judge whilst passing the impugned Judgment has doubted the authenticity of the Agreement for cogent reasons recorded in the impugned Judgment. Considering that the impugned Order is a discretionary Order and the learned Judge has considered all the material on record, I find that there is no case made out for any interference by this Court in the present Appeal. Any construction carried out by the Respondent no.3 will be subject to the result of the suit and the statement of Shri M. P. Almeida, learned Counsel appearing for the Respondent nos. 1 to 3, is accepted. Hence there is no merit in the above Appeal and the same stands dismissed. It is made clear that the learned Judge shall not be influenced in any manner with the findings made herein above or by the impugned Judgment whilst disposing of the suit on merits. The learned Judge is directed to dispose of the Suit filed by the Appellant as expeditiously as possible considering the nature of the dispute in controversy.