JYOTIRMAY BHATTACHARYA, J. - (1.) THESE two First Miscellaneous Appeals are directed against the common judgement and/or common order being No.32 dated 12th February, 2013 passed by Learned Judge, 4th Bench, City Civil Court at Calcutta in Title Suit No.1767 of 2012 at the instance of the defendant No.3/appellant. By the said common order, two applications namely, one for temporary injunction filed by the plaintiff and the other for vacating the ad interim order of injunction filed by the defendant No.3, were disposed of by the Learned Trial Judge.
(2.) THE plaintiff 's application for temporary injunction was allowed. The parties were directed to maintain status quo with regard to the nature, character and possession of the parties in the suit property till the disposal of the suit. The defendant 's application under Order 39, Rule 4 of the Code of Civil Procedure which was filed for vacating the ad interim order of injunction was rejected by the Learned Trial Judge by the impugned order. Hence, two First Miscellaneous Appeals were filed by the defendant No.3/appellant. One of such First Miscellaneous Appeals is directed against the order of grant of temporary injunction by the Learned Trial Judge and the other First Miscellaneous Appeal is directed against an order by which the defendant 's application for vacating the ad interim order of injunction was rejected by the Learned Trial Judge. Since both the appeals are directed against common order and the fate of one of such appeals is dependent on the other, this court, for avoiding conflict of decisions heard both the aforesaid appeals analogously and has decided to dispose of both the aforesaid appeals by a common judgment. Let us now consider the merit of the aforesaid appeals in the facts of the instant case. Admittedly, the defendant Nos. 1 and 2 were the owners of a flat identified as flat No.1W, situated on the Western side of the 1st Floor of Premises No.13, Chapel Road, P.S. Hastings together with car parking space in the ground floor of the said building, having half share each therein (hereinafter referred to as the said property). The defendant No.1 was in absolute khas possession and enjoyment in the half share of the said property having heritable and transferable estate. The said defendant offered to sell his share in the said property to his other co -sharer, namely, defendant No.2. Since the defendant No.2 refused to purchase the half share of the defendant No.1 's share in the said property, the defendant No.1 started negotiating for sale of his interest in the said property with the plaintiff. The Plaintiff agreed to purchase the share of the defendant No.1 in the said property. Accordingly, an agreement and/or memorandum of understanding was executed between the plaintiff and the defendant No.1 containing the terms and conditions for sale of the interest of the defendant No.1 in the said property in favour of the plaintiff. It was agreed upon between the parties that the interest of the defendant No.1 in the said property would be sold to the plaintiff for a consideration of Rs.9,75,000/ -; out of which a sum of Rs. 1,25,000/ - was paid by the plaintiff to the defendant No.1 in cash by way of an earnest money and/or part payment of the consideration money. The acknowledgement of the defendant No.1 about receipt of the earnest money was also recorded in the said agreement and/or memorandum of appeal. As per the said agreement for sale, it was agreed between the parties that the transaction should be completed within 45 days from the date of agreement and/or the said memorandum of understanding. Subsequently, the plaintiff found that a legal notice was published in daily newspaper, namely, The Telegraph as well as Sanmarg, both dated 28th November, 2012 wherein it was mentioned by Jhunjhunwala and Company Advocates, that their client was desirous of purchasing the flat being flat No.1W at 13 Chapel Road, P.S. Hastings on the 1st Floor together with one covered car parking space in the said building from the defendant Nos.1 and 2 and any person having any claim or interest in the said property was requested to intimate the said advocate within a specified time . After coming to know about the said notice, the plaintiff by his letter dated 14th December, 2012 intimated the said M/s. Jhunjhunwala and Company Advocates about the agreement which the plaintiff entered into with the defendant No.1 for purchasing his interest in the said flat and the garage. Subsequently, the plaintiff came to know on 18th December, 2012 that on 3rd December, 2012 the defendant Nos. 1 and 2 purported to have sold the said flat and the garage to the defendant No.3 for valuable consideration. The plaintiff, thus, claims that the defendant No.1 has practised fraud upon the plaintiff by offering to sell his interest in the said flat and the garage in favour of the defendant No.3 without disclosing the existing agreement for sale which the said defendant entered into with the plaintiff for sale of his interest in the said flat and the garage in favour of the plaintiff. The plaintiff claims that he was ready and willing and/or is still ready and willing to purchase the interest of the defendant No.1 in the said flat and garage. The plaintiff claims that since such sale was made by the defendant No.1 in favour of the defendant No.3 during the subsistence of valid and legally enforceable contract for sale which was executed between the plaintiff and the defendant No.1 for sale of the defendant No.1 's interest in the said flat and the garage, the sale which was made by the defendant No.1 in favour of the defendant No.3 is a void sale and his right to enforce the agreement against the defendant No.1 remains unaffected by such sale made by the defendant No.1 in favour of the defendant No.3. The plaintiff, thus, filed a suit for Specific Performance of Contract with an alternative claim for refund of the earnest money, in case his prayer for specific performance of contract is not allowed. The plaintiff has also prayed for declaration that the sale which was made by the defendant No.1 of his share in the said flat and the garage to the defendant No.3 is a void transaction and the defendant No.3 has not acquired any title by virtue of such purchase of the defendant No. 1 's interest in the said property. Permanent injunction has also been sought for restraining the defendants, their men, agents and assigns from dealing with, disposing of, transferring and/or alienating and handing over possession of the undivided one half part share of the defendant No.1 in flat No.1W together with the benefit of one car parking space in the ground floor of the said Premises No.13, Chapel Road, P.S. Hastings, Kolkata to any person or persons other than the plaintiff. Some other incidental reliefs were also prayed for in the said suit.
(3.) AFTER filing the said suit, the plaintiff filed an application under Order 39, Rule 1 and 2 of the Code of Civil Procedure, inter alia, praying for temporary injunction for restraining the defendants, their agents and assigns from in any way dealing with and/or transferring and/or alienating and/or handing over possession of the said property in any manner whatsoever, to any person other than the plaintiff during the pendency of the suit and ad interim order of injunction in similar form was also prayed for by the plaintiff in the said injunction application. The Learned Trial Judge by his order being No. 2 dated 11th December, 2012 was pleased to pass an ad interim order of injunction by directing the parties to maintain status quo in respect of the nature, character and possession of the suit property till the disposal of the injunction application. On receipt of notice communicating the said ad interim order of injunction passed by the Learned Trial Judge in the said suit, the defendant No.3 being the purchaser of the said flat filed an application under Order 39, Rule 4 of the Code of Civil Procedure, praying for vacating the said ad interim order of injunction. The said defendant also contested the plaintiffs ' application for temporary injunction by filing objection thereto. It was contended by the said defendant that the said defendant is a bona fide purchaser for value without notice of the alleged agreement for sale entered into between the plaintiff and the defendant No.1 and as such his purchase of the suit property is protected under law. It is contended therein that even before purchasing the said property, the said defendant through his advocate and solicitor published a legal notice in daily issue of Telegraph and Sanmarg on 28th November, 2012 recording therein that the said defendant is desirous of purchasing the said flat and the covered garage on the ground floor of premises No.13, Chapel Road, P.S. Hastings from the defendant No.1 and 2. By the said publication of legal notice, public at large was invited to intimate the said advocate and solicitor of the defendant No.3 as to whether anyone has any interest in the said property within a specified time. In pursuance of the said legal notice published in the newspaper, nobody intimated the defendant 's said solicitor about his or her claim in the said property within the specified time. The plaintiff also never informed the defendant 's said solicitor/advocate within the specified time as to the execution of the purported agreement between the plaintiff and the defendant No. 1 for transfer of the defendant No. 1 's half share in the said flat and the garage on the ground floor of the said building. After expiry of the notice period, the said defendant purchased the said flat and the garage from the defendant Nos. 1 and 2 for a consideration of Rs.1,45,00,000/ -. He further claims that he has also purchased the fitings and fixtures of the said flat from those two defendant Nos. 1 and 2 on payment of a further sum of Rs.5,00,000/ - to the said defendants. He, thus, claims the protection which is available to a bona fide purchaser for valuable consideration without notice of the agreement for sale purported to have been entered into between the plaintiff and the defendant No.1. It is however, an admitted position that after purchasing the said flat from the defendant Nos. 1 and 2 the said flat was let out to the defendant No.1 at a rental of Rs.75,000/ - per month. The said defendant, thus, claims that the plaintiff 's prayer for temporary injunction cannot be allowed as neither he has been able to make out any strong prima facie case nor the balance of convenience and inconvenience is in his favour for grant of injunction. The said defendant also prayed for vacating the ad interim order of injunction, on identical grounds.;