IMPORTANT POINT
The appellate court should not interfere with the exercise of discretion of the court of first instance unless it has been shown to have been exercised arbitrarily, capriciously, or perversely.

ORDER :

1. The present Appeal From Order is preferred being aggrieved and dissatisfied with the order dated 05.09.2022 passed by the trial Court below Exh.6/7 in Civil Suit No.3037 of 2015, whereby, the trial Court has granted the application below Exh.6/7 and prayer in terms of para 7(A) of the notice of motion application.

2. It is observed in the order dated 05.09.2022 that the defendants are restrained from assigning or transferring the suit property to his men, servants, agents or any other persons till final disposal of the suit and the same is under challenge by filing the present appeal from order on 11.10.2022, it is relevant to note that though the appeal from order is filed on 11.10.2022, it was actually registered on 07.11.2023. Considering this factual background in mind, the present appeal from order is taken up for hearing.

3. Heard learned advocate Mr. Chirag A. Prajapati for the appellant.

4. On 01.12.2023, the Coordinate Bench of this Court has passed the following order:

“Learned advocate Mr. Chirag A. Prajapati for the appellant seeks time for taking appropriate instructions from the appellant.

Stand over to 22.01.2024.”

5. On inquiry, learned advocate Mr. Chirag Prajapati has submitted that the said instructions were regarding something else and not for the withdrawal of the appeal from order, therefore, though the earlier order passed by the Coordinate Bench indicates the same, however, the present appeal from order is argued and actually the same is considered on merits.

6. Learned advocate Mr. Prajapati has drawn my attention towards the fact that in the agreement to sell, the term is stipulated within six months plaintiff-respondent herein has to pay the amount of the consideration. At the time of execution of the agreement to sell, the plaintiff has paid Rs.3 lakhs in cash and Rs.1 Lakh by way of cheque. The remaining amount is not paid. Thereafter, within six months, as per the term of agreement to sell, the plaintiff-respondent herein was not able to pay the remaining amount in question and thereafter, notice correspondence has taken place. Learned advocate has drawn my attention towards the notice correspondence and has submitted that from the notice correspondence also, the plaintiff in the suit is not in a position to pay the amount immediately as she has prayed that she has to take loan for further payment. He has also drawn my attention towards the findings of the trial Court, whereby, the trial Court has found that the agreement is still in existence. Learned advocate Mr. Prajapati has submitted that the trial Court has wrongly considered this aspect and has committed error in finding that the agreement is still in existence as the period of six months stipulated for the payment is over and therefore, agreement could not be considered in existence and therefore, he has submitted that the trial Court has given erroneous findings. He has further submitted that there is no readiness and willingness shown by the plaintiff as required under the law and therefore, also Court has committed error in granting injunction.

6.1 Learned advocate Mr. Prajapati has further submitted that the appellant-original defendant is an Auto Rickshaw driver and the respondent-original plaintiff, from her conduct cannot be considered that she is ready and willing to perform her obligation. He has relied on the judgment of the Hon’ble Apex Court in the case of Shenbagam & Ors. Vs. K.K. Rathinavel rendered in Civil Appeal No.150 of 2022, more particularly, para 36 of that judgment. He has also relied on the judgment of the Hon’ble Apex Court in the case of Katta Sujatha Reddy Vs. M/s Siddamsetty Infra Projects Pvt. Ltd. rendered in Civil Appeal No.5822 of 2022, more particularly, the observations made in para 79 of that judgment. He has submitted that in view of this, the order passed by the trial Court is bad in the eye of law and therefore, he prays to exercise jurisdiction of this Court under Order 43 Rule 1 of the Code of Civ