ORDER

The petitioner/defendants have filed this Misc. Petition under Article 227 of the Constitution of India, challenging the order dated 11.12.2023 passed by 20th Additional District Judge Indore whereby an application under Order 19 Rule 2 of C.P.C. has been dismissed. 2. The respondent No.1/plaintiff filed suit for specific performance of contract and permanent injunction in respect of land bearing survey No.112/1/1 area 0.308 hectare owned by defendants No. 1 to 3 i.e. petitioners. According to the plaintiff, an agreement to sale was executed by the defendant No.1 to 3 in respect of aforesaid land in Rs.1,75,00,000/-. At the time of of signing of agreement, Rs. 1,70,00,000/- was paid and acknowledgment was issued. The parties agreed to get the agreement executed upon payment of Rs. 5,00,000/-. Now the defendants are not ready to execute the sale deed for which the notice dated 18.07.2023 was issued and cause of action accrued for filing of the suit. The plaintiff also filed an application under Order 39 Rule 1 and 2 of C.P.C. seeking temporary injunction that the defendant Nos.1 to 3 be restrained to create third party interest or mortgaged the land in question.

3. The respondent filed reply to the aforesaid application by submitting that market value of the land is Rs.40,00,000,00/- and as per guideline it is more than Rs.10,00,000,00/-, therefore, the question of sale of land in Rs.1,75,00,000/- does not arise. It is further submitted that the plaintiff has not given the details i.e. date & time in respect of payment of Rs.1,70,00,000/-. The plaintiff is government employee, he is required to explain the source of aforesaid income. The land had already been diverted in the year 2004 and at present petrol pump is running on the aforesaid land. So called agreement to sale is unregistered document. The plaintiff being Deputy Registrar, Stamp is aware that such agreement is required registration.

4. It is further submitted that in the said agreement, the name and signature of purchaser are not there. It was executed for the security purpose as defendants borrowed some money from the plaintiff, hence, it was signed without mentioning the name of purchaser. In order to establish these defence before deciding an application filed under Order 39 Rule 1 and 2 of C.P.C., the defendants filed an application to call the plaintiff in the witness box for the purpose of cross-examination of his affidavit given in support of an application 39 Rule 1 and 2 of C.P.C. The said application was opposed and vide order dated 11.12.2023, the Court has rejected the application that the application under Order 39 Rule 1 and 2 of C.P.C.is liable to be decided expeditiously. So far as facts stated in the affidavits are concerned, the defendants would get ample opportunity to cross examination the plaintiff during the trial. The plaintiff has been admitted that he is government employee. At this stage the cross- examination is not required because the application for temporary injunction is liable to be decided on the basis of prima facie case, balance of convenience and irreparable loss and on the basis of pleadings and documents.

5. Shri V.K. Jain, learned Senior Counsel appearing on behalf of defendants submits that the agreement to sale for which the plaintiff has filed Civil Suit cannot be said to be an agreement to sale in the eyes of law because in which the name of purchaser and his signature are not there and no details were given in respect of payment of Rs. 1,70,00,000/-. This agreement has been executed for the security purpose not for sale of the land. The plaintiff is Sub- Registrar, in the office of Registrar Stamp. He has not disclosed that as to how he arranged Rs. 1,70,00,000/-.

6. It is not a case of the petitioners that they will not get opportunity to cross-examination the plaintiff on these defence but the issue is that whether at this stage the provisions of under Order 19 Rule 2 of C.P.C.are liable to be invoked. The defe