ORDER

1. This petition under Article 227 of the Constitution of India has been preferred by the petitioner/plaintiff being aggrieved by order 15.7.2024 passed in MCA No.13/2023 by the District Judge, Badnawar, District Dhar whereby the order dated 29.8.2023 passed in RCSA/20/2023 by the Civil Judge, Junior Division, Badnawar has been set aside and his application under Order 39 rule 1 and 2 of the CPC for issuance of temporary injunction has been rejected.

2. The plaintiff has instituted an action against defendant No.1 for specific performance of contract dated 1.11.2022. He has contented that on 1.11.2022 defendant No.1 had entered into an agreement to sale with him with respect to the suit lands for a total consideration of Rs.36,11,000/- upon receiving earnest money of Rs. 50,000/-. His son had also signed upon the same as consentor. Under the agreement defendant No.1 was enjoined to create a passage to the suit land which has not been done by him till date of filing of the suit. The plaintiff has always been ready and willing to perform his part of the contract but defendant No.1 is not doing so despite notice dated 20.11.2022 to him in that regard. Instead defendant No.1 is attempting to alienate the suit lands in favour of third persons.

3. Along with the plaint, the plaintiff also filed an application under Order 39 rule 1 and 2 of the CPC for issuance of temporary injunction restraining defendant No.1 from alienating the suit lands in any manner. The defendant No.1 filed his reply to the application submitting that no agreement to sale was ever executed by him in favour of plaintiff nor he had received any amount by way of earnest money. The terms of the agreement as set up by plaintiff are totally false. Instead he has entered into an agreement to sale with respect to the suit lands in favour of one Manoj on 11.11.2022 and since no agreement itself has been executed in favor of plaintiff, he is not entitled for issuance of temporary injunction in his favour.

4. The trial Court allowed plaintiff’s application for issuance of temporary injunction observing that he has produced the agreement to sale which has been signed upon by defendant No.1 and there is an averment therein as regards payment of earnest money. Plaintiff had also issued notice in that regard. Defendant No.1 is attempting to alienate the suit lands. The issue as to whether the agreement was executed by defendant No.1 in favour of plaintiff can only be decided on merits. In appeal by defendant No.1 the order has been set aside by the appellate Court by the impugned order observing that in the agreement executed by defendant No.1 subsequent to plaintiff's sale agreement the price of land has been shown to be much more than what is stated in plaintiff’s agreement and that the order was passed by the trial Court by relying upon an unstamped sale agreement which cannot be sustained.

5. Leaned counsel for the plaintiff has submitted that the order passed by the appellate Court is wholly illegal. It had itself found prima facie case in favour of plaintiff yet finding that balance of convenience and irreparable injury is not in his favor, the order of trial Court has been set aside. The actual value of the suit lands as on the date of agreement entered into between the parties is a matter of evidence could not be a ground for rejecting plaintiff’s application. The agreement produced by plaintiff prima facie shows that defendant No.1 had signed upon the same and had received earnest money. The same cannot be disregarded only on the ground that the same is unstamped and is unregistered and particularly at the present stage while considering the application for insurance of temporary injunction. The conduct of defendant No.1 shows that the agreement was in fact entered into by him with plaintiff and for avoiding execution of the sale deed and to sell the suit lands to third person he has taken the false plea that the agreement was never executed. If the suit lands are