IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE MANINDER S. BHATTI th ON THE 4 OF SEPTEMBER, 2023 MISC. PETITION No. 2680 of 2023 BETWEEN:-

PREETAM AASWANI S/O SHRI PARMANAND AASHWANI, AGED ABOUT 50 YEARS, HOUSE NO. 354 VANTREE HILLS BAIRAGARH DISTRICT- BHOPAL (MADHYA PRADESH)

.....PETITIONER (BY SHRI AVINASH ZARGAR - ADVOCATE )

AND

1. OM PRAKASH RAICHANDANI S/O SHRI BHAGWANDAS RAICHANDANI OCCUPATION: ADULT NEW A 25/261 BAIRAGARH DISTRICT-

BHOPAL (MADHYA PRADESH)

2. DEEPAK KUMAR PANJWANI S/O RAMCHANDRA PANJWANI R/O 124, NEW SINDHI COLONY, BAIRASIYA ROAD, DISTRICT BHOPAL (MADHYA PRADESH)

.....RESPONDENTS (BY NONE)

This petition coming on for admission this day, the court passed the following:

ORDER

This is a petition seeking quashment or orders dated 2.2.2023 (Annexure P-1) passed in M.C.A No. 62/2023 and 20.12.2022 (Annexure P-2) passed in R.C.S.A No. 1690/2022.

2. Counsel contends that the petitioner herein has filed a suit for Specific Performance of the Contract on the basis of an agreement dated 25.12.2019 Signature Not Verified Signed by: VIVEK KUMAR before the Trial Court. Along with the plaint, the petitioner/plaintiff also moved an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 (C.P.C for short). The application under Order 39 Rules 1 and 2 C.P.C has been rejected by the Trial Court vide order dted 20.12.2022. Assailing the said order, petitioner preferred an appeal in terms of Order 43 Rule 1 (r) of the C.P.C, which has also been dismissed vide order dated 2.2.2023 (Annexure P-

1).

3. It is contended by the counsel that both the Courts below have declined to entertain the prayer for grant of temporary injunction on the ground that the agreement dated 25.12.2019, on the basis of which, the suit has been filed, does not contain the factum of payment of consideration. It is contended by the counsel that the Courts below have rejected the petitioner's stand on the ground that no amount of consideration is mentioned in the application. It is contended by the counsel that the genuineness and validity of a document is required to be tested at appropriate stage after the parties adduce evidence. But, at the stage of dealing with an application under Order 39 Rules 1 and 2 CPC, the Court could not have gone into veracity of the agreement dated 25.12.2019. The counsel in support of his contention placed reliance on the decision of Apex Court in Ameer Minhaj v. Dierdre Elizabeth (Wright)

Issar and others [(2018) 7 SCC 639].

4. Having considered the submissions advanced on behalf of the petitioner, a perusal of the order passed by the Trial Court reflects that the Trial Court while dealing with the agreement dated 25.12.2019 has considered that the same does not contain the factum of amount of consideration which according to the plaintiff was paid to the defendant and accordingly the Court has considered that an agreement without consideration is a nullity in terms of Signature Not Verified Signed by: VIVEK KUMAR Section 25 of Indian Contract Act, 1872 and the Trial Court while arriving at the findings that placed reliance in Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana (AIR 2012 SC 206). The agreement dated 25.12.2019 has been filed with the petition as Annexure P-4. A perusal of the said agreement reflects that the amount of consideration is not mentioned therein. Therefore, as it was the onus upon the plaintiff to establish a prima facie case and in absence of amount of consideration in the agreement both the courts below did not commit any error while rejecting the plaintiff's application filed under Order 39 Rules 1 and 2 C.P.C.

5. Therefore, this Court does not find any infirmity or error in the order passed by the Courts below. The petition stands dismissed (MANINDER S. BHATTI)

JUDGE vivek Signature Not Verified Signed by: VIVEK KUMAR