The court's decision was influenced by the existence of the agreement dated 02.04.2009 and the contentious issue of consent of the respondent's brothers in executing the agreement.

JUDGMENT

Farjand Ali, J. - The instant appeal has been preferred by the plaintiff-appellant under Order 43 Rule 1 of the Code of Civil Procedure against the order dated 26.07.2022 passed by the learned Additional District Judge, Jodhpur whereby the learned Court below has partly allowed the application filed by him seeking temporary injunction and at the same time, permitted the defendants/respondents for use and occupation of the land in question in Civil Misc. Case No. 23/2015 (83/2010).

2. Briefly stated, the facts of the case are that the appellant filed a suit for specific performance of contract, cancellation of sale deed and perpetual injunction against the defendants/respondents. Along with the suit, an application under Order 39 Rules 1 & 2 of CPC was also submitted wherein on 13.07.2010, on an undertaking made on behalf of the non-petitioners No. 5 and 8 to the effect that they shall not raise any construction over the suit property, the hearing of the application was deferred. Another application dated 16.04.2022 was also submitted by the appellant-plaintiff-applicant under Order 39 Rules 1 & 2 read with Section 151 of CPC seeking immediate indulgence of the Court for issuance of temporary injunction in his favor while alleging that the respondents/defendants were bent on evicting him from the suit property and were adamant to dismantle the construction erected over it. The learned trial Court has decided both the applications through one order dated 26.07.2022 which is assailed before this Court. After elaborate discussion of the averments made in the application and reply and consideration of rival submissions made by the parties, the learned trial Court observed the existence of agreement dated 02.04.2009 in favor of the plaintiff-appellant while holding the issue contentious to the effect that whether the respondent Suresh Chandra executed the agreement after getting consent of his brothers or not as the same would be the subject of the trial and could be ascertained after the parties would adduce evidence in support of their respective claims and thus observing that the plaintiff was in possession of a shop in which he was running his business in the name and style of Sayar Medical Store, the learned trial Court partly allowed the application for temporary injunction and restrained the respondents/defendants from evicting the appellant from the shop in which he is running his medical store. It was also observed that the respondents were interdicted from making any damage to the shop and disturbing him from use and occupation of the same.

3. Shri Muktesh Maheshwari, learned counsel for the appellant, submits that the learned Court below has failed to appreciate the correct legal and factual aspect of the matter and thus, committed an error in partly allowing the application filed under Order 39 Rules 1 & 2 of CPC. It is submitted that the existence of agreement of sale deed dated 02.04.2009 entered into between the plaintiff and respondent Suresh Chandra @ Suresh Kumar in respect of sale of the property for a monetary consideration of Rs. 17,00,001/- out of which, receipt of upfront amount of Rs. 1,00,000/- by the executor Suresh Chandra, is not a disputed fact. He was always ready and willing to perform his part; he even issued a registered notice dated 04.06.2010 showing his willingness to perform his part. He is still ready to give the remaining amount. It is further submitted that there is a shop and some other vacant land which are the subject matter of the agreement and it is not disputed that the plaintiff is in peaceful possession of the shop where he is running his medical store in the name of Sayar Medical Store. There is a prima facie case and the balance of convenience is in his favor and it is asserted that if the temporary injunction is not granted and if the subsequent purchaser raises construction over the vacant land, the appellant would have to suffer irreparable loss which would be impossible to