ORDER

Plaintiff in OS.No.69/2014 on the file of the learned Prl.Senior Civil Judge, Udupi is impugning the order dated 05.12.2014 rejecting IA No.2 filed under Order 39 Rules 1 and 2 of CPC and refusing to restrain the defendant from alienating the suit schedule property during the pendency of the suit, Which was confirmed in MA No.1/2015 on the file of the learned Prl.District Judge, Udupi vide judgment dated 15.03.2017. 2. Heard Smt. Leela P.Devadiga, learned counsel for the petitioner and Sri. Somashekar.T., learned counsel for the respondent.

3. Learned counsel for the petitioner contended that the petitioner as plaintiff has filed the suit OS.69/2014 seeking specific performance of the contract in respect of the schedule property. Defendant even though admitted execution of the agreement to sell has taken several defences. Now the matter is fixed for plaintiff’s evidence.

4. Leaned counsel submitted that initially the trial Court had granted exparte order of temporary injunction restraining the defendant from alienating the property. But later rejected IA No.2 observing that the plaintiff was not ready and willing to perform his part of the contract and there is delay on the part of the plaintiff in seeking specific performance of the contract. These observations by the trial Court will adversely affect the case of the plaintiff. Moreover, if during the pendency of the suit, defendant alienates the property that will lead to multiplicity of proceedings. The trial Court and the first Appellate Court have not considered these aspects of the matter and therefore, he prays for allowing the petition by setting aside the impugned order.

5. Per contra, learned counsel for the respondent submitted that agreement to sell is dated 07.12.2008. Only an amount of Rs.1 lakh was paid as advance on 06.06.2009. The total consideration agreed was Rs.57 lakhs. The plaintiff agreed to get evict the tenants who are in occupation of residential houses in the schedule property. The defendant issued the notice dated 09.04.2009 to the plaintiff to both his residential and official address. The notice sent to his official address was served on him. Inspite of that the plaintiff was not ready and willing to perform his part of contract. Belatedly, the suit was came to be filed in the year 2014. Taking into consideration all these facts and circumstances, the trial Court and the first appellate Court rightly rejected the claim of the plaintiff for grant of temporary injunction and accordingly, it is observed that the plaintiff was not ready and willing to perform his part of the contract and it is also observed that the suit must have been barred by limitation. There are no perversity or illegality in the order and judgment impugned here. Therefore, he prays for dismissal of the petition.

6. It is the contention of the plaintiff that he entered into agreement to sell with the defendant on 07.12.2008. The suit was came to be filed during 2014. It is the contention of the plaintiff that he had paid advance amount on various dates, which is specifically denied by the defendant and he has sated that even a criminal case is registered against the plaintiff for forgery and concoction of document. However, the plaintiff is having his own reasons for the delay in filing the suit. It is for him to establish his contention that he was prevented from sufficient reason for not approaching the Court with in reasonable time after execution of the agreement to sell. It is for the plaintiff to prove that he was ready and willing to perform his part of contract.

7. Admittedly, the trial Court had granted exparte temporary injunction against the defendant not to alienate the schedule property. Learned counsel for the respondent fairly conceded that defendant is not intending to alienate the schedule property during the pendency of the suit. Both the learned counsel submitted in unison that the trial Court may be directed to dispose of the suit in a time bound manner for