Jose Joseph and Others vs K.C. Moideen

P.A. Mohammed, J.—This appeal is filed against the order in I.A. No. 367 of 1995 in O.S. No. 1 of 1995 on the file of the District Court, Wynad. The Appellants are the Defendants in the above suit. The suit was filed mainly praying for perpetual injunction restraining the Appellants from alienating or otherwise disposing of the plaint schedule property or from trespassing or entering into it. In the suit, the Respondent-Plaintiff filed the above interlocutory petition under Order XXXIX, Rule 1 of the CPC for temporary injunction. The court below has allowed the said petition as per order dated 5th January 1996, the correctness and legality of which is challenged in this appeal.

The facts involved in this appeal can be shortly summarised thus: The plaint schedule property is the subject-matter of Ext. A-1 agreement for sale dated 31st March 1994 executed between the Appellants on the one side and the Respondent on the other. The Appellants are executants 1 to 8 and the Respondent is the 9th executants in Ext. A-1. The plaint schedule contains twelve items of properties having a total extent of 961/2 cents in Survey No. 519 sub division No. 4D of Kalpetta Amsom Desom of Vythiri Taluk. The above properties were owned and possessed by the Appellants as per the registered assignment deeds obtained in the year 1986. They together executed Ext. A-1 agreement for sale in favour of the Respondent agreeing to sell the property absolutely for a total consideration of Rs. 25,00,000/-. Out of the above, Rs. 5 lakhs was paid as advance at the time of the execution of the agreement. It was agreed that the balance consideration of Rs. 20 lakhs would be paid by the Respondent in two installments, that is to say, first instalment of Rs. 10 lakhs would be paid on or before 30th June 1994 and the second on or before 31st August 1994. However, on 28th June 1994 the Respondent sent a registered lawyer notice to the Appellants stating that though he was ready to pay the balance consideration payable on 30th June 1994 he came to know that the properties agreed to be sold as per Ext. B-1 agreement forms part of the properties escheated to the Government in view of the proceedings under the Escheat and Forfeiture Act, 1964 initiated by the District Collector, Kozhikode that those facts were wilfully and fraudulently suppressed at the time of executing the sale agreement and that the Respondent would pay the balance consideration as per the terms of Ext. A-1 agreement on satisfactorily explaining the title in respect of the properties. There was no reply to this notice from the Appellants. Again, the Respondent sent Ext. A-3 notice on 27th August 1994 calling upon the Appellants to satisfy that they have perfect and valid title over the properties covered by Ext. A-1 agreement and that the title is not lost by statutory forfeiture under the provisions of the Escheat and Forfeiture Act. However, the Respondent has received Ext. A-4 letter from the Appellants sent through their lawyer. Along with the said letter, copy of the reply notice stated to have been sent by the lawyer on 23rd June 1995 has been enclosed. Subsequently, the Respondent came to know from reliable sources that the Appellants were attempting to alienata and dispose of the properties in spite of Ext. A-1 agreement and therefore the suit had been instituted for a decree restraining the Appellants from alienating the properties and for other reliefs. The Respondent also filed a petition for temporary injunction against the Appellants from interfering with his peaceful possession and from alienating the property. The court below, after enquiry, passed an Order granting temporary injunction against the Appellants which will be in force till the Appellants clear their title over the plaint schedule property. It is against the said order the present appeal has been filed by the Defendants.

The sole question that requires to be decided in this appeal is whether the temporary injunction granted by the court below can be justified in the facts and circumstances of this case?

In channelizing the contention that the Appellants had suppressed the defective nature of the title of the property proposed to be sold as per Ext. A-1 agreement, the Respondent has produced Ext. A-6 notification issued by the District Collector, Kozhikode u/s 5 of the Kerala Escheats and Forfeiture Act, 1964. Ext. A-6 contains two notifications. The first one relates to properties comprised in R.S. No. 519/3, and 519/4 (Patta 27, 157 and 262). The second notification relates to the properties comprised in R.S. No. 960/1A and 960/1B. In this case, we are concerned with the first notification, which is extracted below:

KOZHIKODE DISTRICT

Notices

Under Section 5 of the Kerala Escheats and Forfeitures Act, 1964 (Act 4 of 1964)

On enquiry u/s 4 of the Kerala Escheats and Forfeitures Act, 1964 (Act 4 of 1964) caused by the District Collector, Kozhikode it has been reported by the Tahsildar, Vythiri that on the death of Smt. Ponnan Kalliani, owner of Woodland Estate in Kalpetta Amsom Desom of S. Wynad Taluk described in the scheduled below, the patta of the land was transferred in the names of her children (1) Mr. John Fletcher and (2) Mr. Frank Fletcher and (3) Miss P.M. Fletcher as per F. Dis. 15/MTR/45-46, dated 23rd June 1945 of the Deputy Tahsildar, Vythiri. Miss P.M. Fletcher died on 28th July 1946 at her residence at Camp Bazar, Cannanore whereupon her name was deleted from the patta and the name of one C. Spittler substituted as per F. Dis. 58/MRR/56, dated 8th January 1947 of the Deputy Tjahsildar, Vythiri. Even though the patta of the land stood in the name of John Fletcher, Frank Fletcher and C. Spittler there is no evidence to show that they had exercised any right or control over the lands. On the other hand there is evidence to show that Miss P.M. Fletcher alone was the sole Jenmi and possessor of the land and that Mr. C. Spittler was only power holder of the Jenmies. Anyway nothing has been heard of the registered holders, John Fletcher, Frank Fletcher and C. Spittler or their heirs, if any, ever since 1951. It is therefore presumed that they have died heirless and intestate or abandoned the properties.

The properties detailed in the schedule below have thus become escheated and vested in the Government in 1951, where from the Fletcher''s mentioned above were unheard of.

I am, therefore, satisfied that this is a prima facie case of escheat. It is, therefore, hereby notified u/s 5 of the Kerala Escheats and Forfeitures Act, 1964 and under common law that persons if any claiming any legal right over the properties detailed in the schedule below belonging to the Fletchers family or any property of which the above family may hereafter be found to have possessed of in full proprietary right should appear and prefer their claims before the District Collector, Kozhikode within six months from the date of publication of this notice failing which the right of the said jenmies over the said properties shall be declared as escheated and vested in the State Government by escheats and the Government shall be entitled to take possession of the said properties.

Schedule

Boundaries

East-Trikaipetta Desom

South-R.S. 520/-(Caroline Estate and Chembra Peak Estate) R.S. 530 (Alakunnu) R.S. 521 and Rs. 522 of Kalpetta Desom.

West-RS. 518/- of Kalpetta Desom Emili Estate and Calicut Mysore Road.

North-Muttil Amsom and R.S. 519/2 of Kalpetta Desom in possession of Sri P. Rama Kurup.

The above notification says that the patta of properties comprised in the survey numbers mentioned therein stood in the names of John Fletcher, Frank Fletcher and C. Spitler whose whereabouts were not known and hence presumed that they have died heirless and intestate. Therefore the above properties have thus become escheated and vested in the State Government in the year 1951 under the provisions of the above Act. The said notification also reveals that Smt. Ponnan Kalliani was the owner of the Woodland Estate in Kalpetta Amsom and the land was transferred in the names of her children, John Fletcher, Frank Fletcher and Miss P.M. Fletcher. Twelve items of properties proposed to be sold to the Respondent as contained in the schedule to Ext. A-1 are seen to be the properties forming part of Woodland Estate in respect of which the Appellants claimed to have obtained title as per the assignment deeds executed in the year 1986.

If the properties agreed to be sold as per Ext. A-1 form part of Woodlands Estate covered by Ext. A-6 notification, then the sale deeds executed in the year 1986 would be invalid, unless the manner of derivation of title is properly explained. The Appellants had shown that they have obtained the title in respect of the properties in view of the sale deeds executed in the year 1986. If the Appellants were aware of the above notification and the properties sought to be sold form part of the land involved in Ext. A-6, then of course it can be said that the Appellants had suppressed this material fact from the notice of the Respondent at the time of execution of Ext. A-1 agreement. Anyway a final conclusion cannot be arrived at this stage inasmuch as it requires further examination during the trial of the suit. However, prima facie it appears that the Appellants'' title is defective in view of Ext. A-6. When the Respondent came to know about this defective nature of title, he sent Ext. A-2 notice on 28th June 1994. That was issued two days prior to the date fixed for payment of Rs. 10 lakhs as stipulated in Ext. A-1. It is pertinent to note that in Ext. A-2 the defective nature of the title and Ext. A-6 proceeding of the District Collector, Kozhikode were specifically pointed out and also demanded an explanation on that aspect. However, the Appellants did not send any reply to the said notice. If the title was perfect and there was no suppression in that regard, definitely the Appellants should have sent a timely reply to Ext. A-2 notice sent by the Respondent. The continued silence of the Appellants on the matters alleged in Ext. A-2 speaks adversely against them. Again the Respondent sent Ext. A-3 notice on 27th August 1994 wherein also the defective nature of the title was pointed out. Even thereafter there was no immediate reply from the Appellants. However, Appellants'' counsel sent Ext. A-1 letter to the Respondent''s counsel enclosing thereby a copy of the letter dated 23rd June 1995 alleged to have been issued to the Respondent. In that letter it is alleged that the Respondent has failed to perform his part of the agreement by refusing to pay the balance consideration within the time stipulated in Ext. A-1 Agreement. At the same time they admit that the Respondent has issued the notices to them obviously referring to Exts. A-2 and A-3, alleging the absence of subsisting title. However, they did not answer the specific case of the Respondent that they have suppressed the proceedings of the District Collector in respect of the land in question as per Ext. A-6 notification. By the said letter the Appellants claimed damages to the tune of Rs. 25 lakhs for the non-payment of consideration on the specified dates. In answer to Ext. A-4 the Respondent''s advocate issued Ext. A-5 reply denying the liability to pay damages and also expressing readiness and willingness to perform his part of the terms of the agreement. From the above facts and circumstances, I am persuaded to hold prima facie that the Appellants had conveniently suppressed the defective nature of the title of properties by the reason of Ext. A-6 proceedings from the notice of the Respondent at the time of execution of Ext. A-1.

The case put up by the Appellants in the counter-statement filed in I.A. 367 of 1995 has necessarily to be examined. Their case appears to be that they were not aware of the proceedings initiated by the Government of Kerala under the Kerala Escheats and Forfeitures Act in respect of the plaint schedule properties. According to them, they came to know of the proceedings long after the agreement of sale and only when reference was seen made in Ext. A-2 notice. It is their case that they have taken steps to move the Government to get the necessary permission to file their claim applications before the District Collector, Wynad to get the properties excluded from the escheat proceedings which is now pending. From the above pleading it would appear that the property proposed to be sold as per Ext. A-1 is part of the properties covered by Ext. A-6 notification issued in the year 1975. They have no case that the plaint schedule properties do not form part of the properties involved in Ext. A-6. As per Ext. A-6 the claims should have been filed within a period of six months from the date of publication of the notice. That period was obviously over long back. Now what the Appellants plead in their counter-statement is that they have filed claim petition. That would suggest that the plaint schedule properties are definitely covered by Ext. A-6 notification.

Now let us examine whether the case put up by the Appellants that they came to know of Ext. A-6 notification only when the Respondent issued Ext. A-2 notice is true and bona fide? If it was the case, Appellants ought to have replied forthwith stating that they would ascertain the correctness of Ext. A-6 notification and return the advance amount if the allegation is true. Instead of doing so, they conveniently kept silent till the issue of letter dated 23rd June 1995. The Respondent sent Ext. A-5 lawyer''s notice on 8th August 1995 for which also there was no reply from the Appellants. Even in Ext. A-5, Respondent''s counsel pointed out the defective nature of title of the Appellants. If the above contention is true, the Appellants ought to have informed the Respondent the step taken by them to preserve the title. Nothing was forthcoming from the Appellants after the issue of Ext. A-5 notice. It is therefore difficult for this Court to believe that they came to know about Ext. A-6 proceedings only when the Respondent issued Ext. A-2 notice.

The next point to be decided in this case is whether the Respondent was put in possession of the plaint schedule property at the time of execution of Ext. A-1 agreement. The case of the Appellants is that even though Ext. A-1 agreement was executed, they were continuing in possession of the property. On the other hand, the contention of the Respondent is that on execution of Ext. A-1 agreement he was put in possession of the property. In support of their case, Appellants rely on the following recital contained in Ext. A-1.

(This clause is hereinafter referred to as the ''former clause''.) At the same time the Respondent relies on the following recital in Ext. A-1:

(This clause is hereinafter referred to as ''latter clause''). The above clause indicates that the plaint schedule property was given possession by executants 1 to 8 (Appellants) to 9th executants (Respondent) on the date of agreement itself.

The case of the Appellants is that handing over possession of the plaint schedule property arises only on execution of the sale deed after payment of the balance consideration. The case put up by them in the counter-statement is that they are in actual possession and enjoyment of the property and they continued in possession even after the execution of the agreement. Their specific case is thus: Subsequent recital in the agreement that possession was handed over to the Petitioner on the date of the agreement is inconsistent with the intention and category assertion in the agreement that possession would be handed over to the Petitioner only on completion of the execution of the sale deed and as such the subsequent recital regarding handing over of possession does not carry any meaning and that is to be ignored as actual possession continued to be with the Respondent. The question therefore is whether possession has been handed over to the Respondent on the date of execution of the agreement itself or delivery of possession has been adjourned till the execution of the sale deed after payment of balance consideration.

The answer to the above question largely dependent on the construction of Ext. A-1 agreement for sale. The first principle of construction is to read the document as a whole for ascertaining the true effect of a recital. Isaacs J. In The Minister for Lands (New South Wales) v. Jeremias (1911) 23 C.L.R. 3221 at p. 332 said:

...it is obeying the very first principle of construction to read the whole instrument before pronouncing upon the interpretation of any single section, and still more of any single word in that section.

Lord Viscount Haldane L.C. in Toronto Suburban Railway Co. v. Corporation of the City of Toronto 1915 A.C. 590 at p. 597 said:

Much turns in each case on the context. The document to be construed must be read as a whole, and in interpreting particular words these cannot be read without reference to what comes before and after.

[Also see per Lord Herschell in John Carter Colquhoun v. Henry Brooks 14 App Cases 493. The Supreme Court while deciding the case in Provash Chandra Dalui and Another Vs. Biswanath Banerjee and Another, relied on the following observation of Lord Davey in N.E. Railway v. Hastings 1900 A.C. 260 (267).]

The deed must be read as a whole in order to ascertain the true meaning of its several clauses, and the words of each clause should be so interpreted as to bring them into harmony with the other provisions of the deed if that interpretation does no violence to the meaning of which they are naturally susceptible.

While reading the document as a whole, the court must supply efficacy to all the recitals in entirety and in fullest extent. It cannot ignore or efface one clause to preserve the other. The Appellants in this case plead that ''latter clause'' in Ext. A-1 shall be ignored since actual possession of the properties continued to be with the Appellants. Such a pleading really contrivance the principles of construction.

There are two modes of reading an instrument: where the one destroys and the other preserves, it is the rule of law, and of equity, following the law in this respect (for it is a rule of common sense, which I trust is common to both sides of Westminster Hall), that you should rather lean towards that construction which preserves, than towards that which destroys.

[See Langston v. Langston (1834) 2 C.I. and F. 194 at page 243]. This principle is in consonance with the maxim "Ut res magis valeat quam pereat". (It is better for thing to have effect than to be made void).

On behalf of the Appellants, it was pointed out that there is ambiguity in the recitals contained in the two clauses of Ext. A-1 under consideration. Therefore, it is essential to consider as to how the court will ascertain the ambiguity if any, in the recitals of an instrument. While reading the instrument as a whole, if the recitals are found to be clear and forthright it cannot be said that there is ambiguity in the recitals. On the other hand if the recitals are not clear and afford doubts as to its true effects the ambiguity may be inferred. If the recitals are clear and unambiguous, the effect shall be given to them in entirety and there is no scope for hypothetical considerations. While, so examining the recitals contained in different clauses of an instrument the intentions of the parties are not relevant. What is relevant is the intention of the recitals. Lord Devlin in Davies v. Elsby Brothers Ltd. (1961) 1 W.L.R. 170 said:

In English law as a general principle the question is not what the writer of the document intended or meant but what a reasonable man reading the document would understand it to mean.

The Supreme Court in Pandit Chunchun Jha Vs. Sheikh Ebadat Ali and Another, observed that the real question in such a case is "not what the parties intended or meant but what is the legal effect of the words which they used". The Division Bench of this Court in Muslim Educational Society v. Pariyayi 1986 KLT 1165 held thus:

But when the deed itself is clear enough in showing the true scope and contour of the transaction, intention of the parties, even if discernible from evidence, shall not whittle down or enlarge the amplitude of the express stipulations made in the document. The test is what a reasonable man would reasonably understand from the terms recited in the document.

Therefore, the court must apply the test what a reasonable man reading the recitals would understand them to mean and not what the parties would have intended or meant. If the recitals are clear and they are capable of being understood by a reasonable man then there is no scopes for any ambiguity. The recital contained in Ext. A-1 deed shall therefore be examined applying the tests analysed hereinbefore.

Ext. A-1 agreement contains six consecutive unnumbered clauses, each framed in a single sentence. The first is the introductory clause which also describes the names and addresses of the executants. The second describes title deeds of executants 1 to 8 and agreement of sale between them and 9th executants for the consideration of Rs. 25 lakhs and payment of the advance amount of Rs. 5 lakhs by the 9th executants (Respondent) and the receipt of the said amount by the executants 1 to 8 (Appellants). The third clause stipulates the manner of payment of the balance consideration of Rs. 20 lakhs and registration of the sale deed in the name of the 9th executants or his nominee and consequent handing over possession of the properties. (This is the clause referred to above as ''former clause''). The fourth clause stipulates that before the registration of the sale deed the executants 1 to 8 shall satisfy the 9th executants as to the non-encumbrance of the properties and shall carry out the measurement in the presence of all parties with the assistance of the officers of Survey Department. The fifth clause stipulates that the properties are given possession to 9th executants by executants 1 to 8 on the date of agreement itself. (This is the clause referred to above as ''latter clause''). The sixth clause stipulates that both parties shall perform their part of the contract within the time allowed and in this no default shall be committed under any circumstances.

A reading of the above clauses would sufficiently brings forth that recitals therein are clear and forthright and do not create any sort of doubt or uncertainty in the mind of an ordinary man capable of reasoning. This is particularly true in the case of ''former clause'' as well as the ''latter clause''. The intentions of both these clauses are clear and explicit. There is no ambiguity or repugnancy between these two clauses and therefore the effect shall be given to them in entirety.

The ''former clause'' speaks of the handing over of possession by the Appellants in favour of the Respondent or his nominee on registration of the sale deed consequent on the payment of the balance consideration of Rs. 10 lakhs. What is contemplated under this clause is the final handing over of possession by the Appellants on registration of the sale deed. On the other hand what the ''latter clause'' contemplates is the interim delivery of possession by the Appellants on the date of execution of agreement of sale. Under this clause the possession is given only to the Respondent whereas under the ''former clause'' the possession will be given to the Respondent or to his nominee. Such transfer of possession shall be in terms of sale deed to be executed after the payment of balance consideration. The distinction between these two clauses are well defined and meaningful. The analysis of these clauses drives me to conclude that the possession of the property has been given to the Respondent on the date of execution of Ext. A-1 agreement.

Learned Counsel Sri Venkitasubramonia Iyer argued that in view of the recital contained in the ''former clause'' the possession continued with the Appellants. According to him the effect shall be given to the ''former clause'' and not to ''latter clause'' in view of the rules governing the interpretation of the documents. In support of this plea he cited a recent decision of the Supreme Court in Kaivelikkal Ambunhi (dead) by LRs. and others Vs. H. Ganesh Bhandary, . In that decision a clear distinction has been drawn between the interpretation of a Will executed by a testator and documents like sale deeds or gift deeds. The interpretation of Will is regulated by the maxim "cum due inter se ponnantia reperiuntur in testamento ultimum return est". While interpreting a Will, this Court had applied this rule namely, "where two clauses repugnant to each other are found in a Will the last prevails" in Vasudeva Prabhu v. Madhava Prabhu 1993 (1) KLT 26. However, this rule will not apply in the case of an instrument by which interest in immovable property is created. In either case the above rule of interpretation will apply only when there is ambiguity or inconsistency between the earlier or subsequent recitals contained in the instrument. The following observation of the Supreme Court in Kaivelikkal Ambunhi''s case (1995) 2 S.C.C. 444 supra is appropriate in this context.

While in these documents if there is any inconsistency between the earlier or the subsequent part or specific clauses inter se contained therein, the earlier part will prevail over the latter as against the rule of interpretation applicable to a will....

In the present case, I have already found that there is no ambiguity or inconsistency between the ''former'' and the ''latter'' clauses.

The Privy Council in Fozbes v. Qit and Ors. AIR 1921 P.C. 209 has laid down the principle of law to be applied in this behalf as thus:

If in a deed an earlier clause is followed by a latter clause which destroys altogether the obligation created by the earlier clause, the latter clause is to be rejected as repugnant, and the earlier clause prevails.

That was a case where two clauses cannot be reconciled. Lord Wrenbury further said:

But if the latter clause does not destroy, but only qualifies the earlier, then the two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole.

In Commissioner of Agrl. Income Tax v. Naravath Lakshmi Amma ILR 1974 Ker 539 a Division Bench of this Court also adopted the rule that the recital in an earlier clause shall prevail over the one in the latter clause while interpreting a gift deed. That was also a case where there was repugnancy in the recitals. This would be evident from the following observations contained in the said decision.

These absolute interests cannot be whittled down by a clause similar to paragraph 7 which is clearly repugnant to what is said in paragraph 2 and 3.

As pointed out earlier, ''latter clause'' clearly reveal that the properties were given possession to the Respondent or the date of execution of Ext. A-1 agreement. That was obviously after the payment of the advance amount of Rs. 5 lakhs towards the total sale consideration in part performance of Ext. A-1 agreement. Such interim delivery of possession pursuant to the execution of sale agreement between the parties is recognised in view of the provisions contained in Section 53A of the Transfer of Property Act. The introduction of such a clause in a sale agreement therefore cannot be said to be redundant. When the law recognizes the inclusion of such terms in an agreement, the Appellants cannot plead that ''latter clause'' does not carry any meaning and therefore has to be ignored from the ambit of the enquiry by this Court.

The contention that the Appellants continued to be in possession of the suit property after the execution of Ext. A-1 agreement does not carry any merit. Apart from the recital contained in Ext. A-1, the counsel for the Respondent in Ext. A-2 registered notice in unmistakable terms stated thus:

Possession of the properties was handed over to my client and the same was expressly reiterated and mentioned in the agreement.

Had the Appellants continued in possession even after the execution of Ext. A-1 agreement, naturally they will controvert the above claim made in Ext. A-2. Admittedly that has not been done. Further, the case of the Respondent has not been denied even in the letter dated 23rd June 1995 sent by the Appellants. However, before the court below the Appellants relied on Exts. B-1 to B-3 documents and also Ext. C-1 commission report to prove their possession. I do not think these documents would be sufficient to prove possession of the Appellants claimed in the counter statement. After examining those documents the court below refused to rely on them. In that situation the finding that the Respondent was in possession of the property as provided in Ext. A-1 from the date of its execution is only to be confirmed.

u/s 55(1)(a) of the Transfer of Property Act the seller is bound to disclose to the buyer any material defect in the property or in the seller''s title thereto of which the seller is and the buyer is not aware and which the buyer could not with ordinary care discover. The Appellants are therefore bound to explain the defective nature of their title alleged by the Respondent in view of Ext. A-6 notification. What is alleged is a material defect in the Appellants'' title of which the seller is aware at the time of execution of Ext. A-1 agreement, in view of what I have said above. This is a defect which the Respondent could not with ordinary care discover. Therefore, Section 55(1)(a) of the Act squarely applies. The Appellants in spite of Exts. A-2 and A-3 notices did not explain the defect satisfactorily. The stand adopted by the Appellants in the suit is not that they have no title but they will file claim petitions before the Government so as to clear the title. It was the continued silence of the Appellants after the receipt of Exts. A-2 and A-3 notices alleging the defective title, which prompted the Respondent to file the suit for injunction. In other words, the failure to perform the obligation of the seller u/s 55(1)(a) is the root cause for the suit. The apprehension of the Respondent in the aforesaid background as to how the Appellants would react ultimately is a relevant factor to be reckoned with. Therefore, the court below is justified in granting the order of temporary injunction in favour of the Respondent.

While confirming the order of temporary injunction granted in favour of the Respondent, I am not unmindful of the broad features of the present suit. The suit, of course, is for prohibitory injunction restraining the Appellants or their men from alienating or otherwise disposing of suit property or from creating any charge or encumbrance thereon and from trespassing upon or entering into it and from committing any acts of waste. The temporary injunction has been granted by the court below till the Appellants clear off the defects in their title. The grant of injunction either permanent or temporary is in the nature of equitable relief and so the court must exercise due care and caution while ordering or refusing the relief. The court has all the powers as are necessary to do the right and to undo the wrong. While granting the relief of temporary injunction in favour of one party, the court must necessarily safeguard the interest of the other party. That is an action of fairness in equity. This rule is implicit in Sub-rule (2) of Rule 2 of Order 39 CPC which provides:

(2) The court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.

Though this is not a suit for specific performance of Ext. A-1 agreement for sale, the Respondent has all along expressed his readiness and willingness to perform his part of the terms of agreement. Out of the total consideration of Rs. 25 lakhs, the Respondent has paid Rs. 5 lakhs at the time of the execution of the agreement agreeing to pay the balance on or before 31st August 1994 in two installments. But for the defective nature of the title, the sale deed would have been executed between the parties immediately on fulfillment of the respective conditions stipulated in Ext. A-1. That the Respondent was put in possession of suit property on execution of Ext. A-1 has now been affirmed. The order of temporary injunction issued against the Appellants has also been confirmed. In this context in exercise of discretionary power under Sub-rule (2) of Rule 2 of Order 39 Code of Civil Procedure. I reasonably feel in the interest of justice, that the rights of the Appellants shall be safeguarded by directing the Respondent to furnish security to the balance sale consideration of Rs. 20 lakhs within a specified time. I am fortified in doing so in view of the continued assertion of the Respondent that he was ready and willing to perform his part of the terms of Ext. A-1 agreement. Accordingly, I direct the Respondent to keep the aforesaid amount in Fixed Deposit under the account of the court below in a nationalised Bank in two installments and produce the Fixed Deposit Receipt before the said court. The first instalment of Rs. 10 lakhs shall be so deposited on or before 12th April 1996 and the second instalment of remaining Rs. 10 lakhs on or before 31st May 1996.

In view of the peculiar circumstances of the case, I think it would be in the interest of all concerned if I give a direction to the court below to dispose of the suit O.S. No. 1 of 1995 as expeditiously as possible at any rate within a period of six months from today. Therefore, there will be a direction as above. The Civil Miscellaneous Appeal is disposed of as above. In the circumstances of the case, no order as to costs.