Patna High Court
Phool Kumari Devi vs Krishna Deo Upadhya And Anr. on 25 November, 1997
Equivalent citations: 1998(2)BLJR960
JUDGMENT S.N. Jha, J.
1. This appeal under Order XLIII Rule 1(r) of the Code of Civil Procedure by the defendant is directed against the order allowing the plaintiffs petition for mandatory injunction and directing the defendant-appellant to demolish the disputed wall on the suit premises.
2. The plaintiff-respondent No. 1 filed Title Suit No. 16 of 1996 for specific performance of contract of sale and for setting aside the subsequent sale-deed dated 11.12.95 executed by the defendant No. 1 in favour of defendant No. 2 with respect to the suit property. His case, so far as relevant, is that defendant No. 1 agreed to sell the property mentioned in Schedule 'Ka' of the plaint to him for Rs. 70,000/- out of which Rs. 55,000- was Paid as advance on 8.12.95. When the parties reached Buxar where the deed was to be executed, defendant No. 1 changed his stance and demanded a higher price. The Plaintiff sent lawyer's notice asking the defendant to execute the sale-deed. He later learnt that on 11.12.95 the defendant No. 1 had executed sale-deed with respect to the property in question in favour of defendant No. 2. He got the facts verified from the Registration office and later filed the suit.
3. On 20.1.96 he filed a petition to restrain the defendants from executing any transfer deed or changing the physical feature of the property. The Court while issuing show cause notice to the defendants directed them to maintain status quo. Advocate Commissioners were appointed one after the other for making local inspection, who submitted their report. According to the Advocate Commissioners, the defendants had made certain construction after knowledge of the O: 3iof the status quo. The Court thereupon passed the impugned order on 18.1.97 directing defendant No. 2 appellant to remove the construction.
4. Mr. Hariji Upadhyay, learned Counsel for the appellant, Submitted that in a suit for specific performance of contract the Court has no power to issue injunction muchless restrain the defendants from making any construction over the suit property. Mr. Rajendra Narayan, learned Counsel for the a Plaintiff Submitted that as the impugned construction was made after the order of status quo, the Court rightly directed the defendant-appellant to remove the construction. Since the impugned act of construction was in contravention of the order of the Court, this Court Should not interfere in the matter.
5. The moot point for consideration, in my opinion, is whether in a suit for specific performance of contract the defendant can be restrained from making construction etc. on the suit land/premises. If the initial order was a bad or improper order, the latter order i.e. the impugned order will have to be interfered with, for it in effect seeks to restore the previous order.
6. In his celebrated Treatise on Specific Performance of Contract (Sixth Edition) Fry states that the jurisdiction of the Court in issuing injunction in an action for specific performance of contract arises in three ways (i) as an instrument to specifically enforce the contract itself or some Part of it, (ii) as incidental or ancillary to the performance of the contract, and (iii) for giving effect to rights resulting from the non-performance of contract. Dealing with the jurisdiction of the Court in cases falling in the first category he states that where the contract contains express negative as well as positive terms, and the positive terms are capable of Specific Performance by the Court, the Court may enforce by injunction the observance of the negative term; for by so doing it promotes the complete performance of the contract as a whole. Cases where the Court grants injunction restraining the breach of any implied term of contract come in his category. In the second category of cases the Court issues injunction to prevent the defendant from doing some thing which may be inconsistent with the equity claimed by the plaintiff or embarrassing to the plaintiff by dealing with the property during the pendency of the action or obstructing the performance of some act incidental to the execution of the contract. Where the defendant intends to create legal right in favour of third party, inconsistent with the right or equity claimed by the plaintiff, by executing transfer deed or otherwise, so as to obstruct the performance of the contract, it is open to the Court to restrain him from doing so. In the third category of cases where the right accrues to the plaintiff prior to the institution of the suit under decree or otherwise, he is entitled to an injunction to restrain the defendant from continuing with acts as may be inconsistent with those rights.
7. An order of injunction restraining the defendant in a suit for specific performance of contract from making repairs or construction on the suit premises, as may be necessary, does not fall in any of the three categories. It is well established that an agreement to sale does not create any interest in the property. It only provides a cause of action to him to bring a suit claiming an equitable right or purchase based on Section 53-A of the Transfer of Property Act. The order of injunction, therefore, cannot travel beyond the scope of Section 53-A of the said Act. It is well settled that the right conferred by Section 523A is a right available to the defendant to protect his position. The defendant cannot claim any title on the basis of the provisions contained therein. As is said sometimes, the right under Section 53-A is to be used as a shield but not as a sword.
8. Counsel for the respondent relied on the decision in Venkat Dharmaji Gontalwar v. Vishwanath , and Rama Devi v. Sanganer Co-operative Housing Society . In the former case the plaintiff claimed to be in possession of the property under agreement which was not denied by the defendant. In the latter case, the Court found that the plaintiff was in possession. In the present case no averment as to having been put in possession by virtue of the alleged agreement has even been made in the whole of the plaint. The ratio of the above said decision, therefore, cannot be applicable in the present case.
9. The application filed in the Court below was intended to restrain the defendant from executing any transfer deed and also from changing the physical features of the property. While an order restraining the defendant from transferring the suit property to a third party can be passed in an appropriate case in a suit for specific performance, as falling in the second category referred to above. I do not think that the defendant cannot be restrained from making repairs or construction or changing physical features of the property, as may be necessary in the case, which is not likely to obstruct performance of the contract. In any view, construction of a wall would not come in that category. If such a right is conceded to the plaintiff of a suit for specific performance, an unscrupulous person may on the basis of forged and fabricated document bring such a suit and harass a bona fide defendant from making even any necessary repair, renovation or construction. As observed above, the agreement does not create any interest in favour of the person until his claims is adjudicated upon and a decree is passed, and, it would be too much to restrain the defendant without any adjudication from making any construction etc. Needless to point out that even where the plaintiff has been able to prove his case, he may not be granted the decree of specific performance, instead, he may be allowed only damages.
10. As is well known, an order of injunction can be passed only where three conditions are fulfilled, that is, where the plaintiff has a puma facie case, he is likely to suffer irreparable loss or injury, if injunction is refused, and the balance of convenience lies in his favour. In the present case, apart from question of prima facie case, which the plaintiff does not have, it is plain that he is not likely to suffer any irreparable loss or injury and that the balance of convenience also does not lie in his favour. The necessary test in this regard is whether the grant of injunction would, if the plaintiff ultimately failed, do more injury to the defendant than its refusal would occasion to the plaintiff, should he ultimately be successful. In a suit for specific performance of contract, if the defendant is not restrained from making any construction, the plaintiff has nothing to lose even if he finally succeeds in the suit; on the other hand, the defendant's loss, if injunction is issued, may not be adequately compensated if the suit is dismissed.
11. The Court below, therefore, in my opinion, committed error in passing the order of status quoto the extent it restrained the defendant from making any construction, and in passing the impugned order directing him to remove the construction (wall). The initial order being illegal and without jurisdiction, the latter order, being merely consequence of it, must also be held to be bad and illegal and liable to be set aside.
12. In the result, this appeal is allowed, the impugned order dated 18.1.97 is set aside.