Allahabad High Court
Mahesh Kumar Srivastava vs Xviiith Additional District Judge, ... on 4 March, 1998
Equivalent citations: 1998(3)AWC1749, AIR 1998 ALLAHABAD 297, 1998 ALL. L. J. 1808, 1998 (1) ALL CJ 458, 1998 ALL CJ 1 458, 1998 (4) CIV LJ 149, 1998 (3) ALL WC 1749, 1998 (1) ALL RENTCAS 456
Author: D.K. Seth
Bench: D.K. Seth
JUDGMENT D.K. Seth, J.
1. Suit No. 656 of 1997 was initiated before the learned Civil Judge. Senior Division. Allahabad by the petitioner against the private respondent Nos. 2 to 8 as defendant Nos. 1 to 7. In the suit, the following prayers were made :
"(A) That the defendant Nos. 4 to 7 be restrained by means of permanent injunction from making any construction over the property in suit or from changing the nature of the suit property.
(B) That the cost of the suit be allowed to the plaintiff against the defendants.
(C) Any other relief which the Court deems fit be awarded to the plaintiff against the defendants."
2. Alongwith the suit, an application for temporary injunction was filed on which an interim injunction was allowed on 17.12.1997. Against the said order, a Misc. Appeal No. 882 of 1997 was filed by the defendant Nos. 6 and 7. The appellate court had granted an interim order of stay of operation of the interim order granted by the learned trial court. Against the said interim order dated 23.12.1997 passed in the appeal, the petitioner had moved a writ petition being Civil Misc. Writ Petition No. 160 of 1998. The writ petition was disposed of by an order dated 12.1.1998. In the said order, it was directed that the injunction application shall stand disposed of in terms of the appellate order and the opposite parties shall not be allowed after disposal of the appeal to contest the application for temporary injunction in the trial court. Pursuant to the said order, on the basis of affidavits and counter-affidavits filed in the appeal, the injunction matter was disposed of by an order dated 20.1.1998 refusing the injunction in favour of the plaintiff-petitioner herein while allowing the appeal filed by the defendant Nos. 6 and 7. It is this order which has since been challenged in this petition.
3. A preliminary objection as to the maintainability of the writ petition under Article 226 of the Constitution, however, was sought to be raised but Mr. A.S. Rai, learned counsel for the petitioner pointed out that the cause title of the petition describing the petition one under Article 226/227 of the Constitution and he prays for treating the application as one under Article 227 of the Constitution, therefore. It is not necessary to go into the said question.
4. Mr. Rai has assailed the said order on several grounds and elaborated his argument. Erudition in the argument is a matter of appreciation which I cannot but record as far as Mr. Rai is concerned who almost had camed me away with him. Mr. Rai had pointed that the learned appellate court while deciding the appeal itself had purported to hold that the suit is not maintainable and that the petitioner had abandoned his agreement on which he claims his right and that the lower appellate court has not considered the question of prima facie case in its proper prospective and had omitted to consider the question of balance of convenience and inconvenience, ignoring the said two proposition of law as has been enunciated by the various High Courts and the Hon'ble Supreme Court in so many decisions. He had also submitted that the learned lower appellate Court had misappreciated the various provisions of law particularly those of Sections 3, 40 and 52 of the Transfer of Property Act, Section 91 of the Indian Trust Act, Sections 3 and 41(h) of the Specific Relief Act and had altogether confused the propositions and had purported to predetermine the issue which could not have been done at this stage. According to him even if prima facie case is not made out within the meaning of Order XXXIX, Rules 1 and 2 even then in exercise of inherent jurisdiction under Section 151 of the Code of Civil Procedure, in the facts and circumstances of the case, he should have exercised his discretion. He contended further that in the present case, there was an earlier agreement for sale in favour of the plaintiff. Despite having knowledge of the said agreement, the defendant Nos. 6 and 7 had purchased the property and therefore the court was wrong in allowing the defendants to continue with the construction which will complicate the issue in the suit and put the plaintiff in difficulties by compelling him to file another suit for seeking demolition that might be raised in the property. Thus he contends that the facts and circumstances was as such that it was a fit case for grant for interim order. Inasmuch as the question that has been decided by the appellate court could not have been decided at this stage on the basis of the affidavits. The plaintiff having made out a triable issue which was sufficient for grant of injunction even if the suit may ultimately failed, it was a fit case for grant of interim order.
5. Mr. W.H. Khan ably assisted by Shri Singhal, learned counsel appearing for the respondents, on the other hand, contended that the findings arrived at by the lower appellate Court are only tentative findings for the purpose of arriving at a prima facie case confined to the question of grant of injunction and it has nothing to do with the ultimate result of the suit which is open to be decided on the basis of evidence that might be led by the parties. He contends that in view of Section 52 of the Transfer of Property Act even if the defendants continue with the construction, in that event, the construction" that has been made after the suit is instituted would be hit by its pendence and therefore it will not prejudice the plaintiff. He further contends that the learned appellate court has come to certain finding which cannot be interfered with or altered in revisional jurisdiction by this Court. He also contends that the injunction application is decided on the basis of affidavits and only for the purpose of deciding the question of injunction. He also refers to the findings of the appellate court with regard to the merit of the case particularly in respect of possession and the abandonment of the agreement and points out that those are tentative findings and that prima facie those findings can be supported by reasons and should not be altered at this stage. According to him, the plaintiff was unable to make out a prima facie case on the basis of the pleadings as well as the affidavit in support of the application for injunction as has been decided by the lower appellate court. According to him, the prayers made in the plaint sufficiently indicate that the plaintiff was not serious in his approach and he is not seeking to enforce the specific performance that too he is asking for an injunction long after a period when the specific performance of the agreement stood barred by limitation. He also points out that the said agreement which was entered in the year 1991 was found to have been abandoned on the basis of the finding that he, subsequently, purchased another property from the same vendor in 1992 in which the amount paid in terms of 1991 agreement appears to have been adjusted in the 1992 sale deed.
According to him since the plaintiff was unable to make out a prima facie case, according to the view taken by the learned appellate court, and that the balance of convenience and inconvenience have been found in favour of the defendants by the appellate court and that the question of irreparable loss and injury would be taken care of under Section 52 of the Transfer of Property Act, it is no more open to this Court to interfere with the lower appellate court order. He also submits that in case, the plaintiff succeeds in that event the defendant Nos. 6 and 7 cannot claim any equitable right simply because the construction has been completed during the pendency of the said suit.
Appreciation of the argument of Mr. Khan also requires mentioned.
6. As it appears from the facts disclosed and enunciated by the learned counsel before this Court that on 10.9.91 the plaintiff had entered into an agreement for sale of 375 sq. mtr. of land. The said agreement was registered one, of which, according to Mr. Rai, is a sufficient notice in terms of Explanation to Section 3 of the Transfer of Property Act for the subsequent transferees. It is not disputed by Mr. Khan, learned counsel for respondents that before purchasing the property, the subsequent transferees, namely, defendant Nos. 6 and 7 did not have any notice of the earlier agreement. Therefore, the said question is not required to be gone into.
7. Mr. Rai also argues that in view of Section 40 of the Transfer of Property Act by reason of the agreement though no interest in the property had accrued but still it was an obligation arising out a contract annexed to the ownership of immovable property and, therefore, such obligation is capable of enforcement even against the transferee. Therefore, according to him the suit as framed is maintainable and cannot be held by the learned appellate court to be not maintainable. He relied on the decision in the case of Keshavlal Laxmandas Patel v. Narsinhbhai Kalidas Patel and another, AIR 1976 Guj 154 and Soni Lalji Jetha v. Kalidas, AIR 1967 SC 978. The ratio decided in the case of Soni Lalji Jetha (supra) was relied upon in the case of Keshavlal Laxmandas Patel (supra), in the said case such a right arising out of contract of sale was held to be an obligation within the meaning of Section 40 of the Transfer of Property Act and as such there was a fiduciary relationship between the vendor and the person who had agreed to purchase the property and thus he is a trustee within the meaning of Section 91 of the Trust Act and as such the said right is enforceable under Section 3 of the Specific Relief Act. The proposition is well-settled. At this stage, it is not necessary to go into this question and it is to be gone into at the time of trial but at the same time, it cannot be said that the suit is not maintainable as framed at this stage. Even if it is held that the suit appears to be not maintainable, still then such a finding should be treated to be a tentative finding for the purpose of deciding the injunction application and in no way shall have any impact on the decision in the suit, which should be given on merits without being influenced by any observation made in the appellate order or in this order.
8. Now so far as the prima facie case is concerned as argued by Mr. Rai, he contended that there were sufficient materials to show that there was a triable issue raised in the suit which requires adjudication and in order to preserve the property, it was incumbent on the lower appellate court to grant an injunction in favour of the plaintiff. He relied on the decision in the case of Manohar Lal Chopra v. Rat Bahadur Rao Raj Seth Hiralal. AIR 1962 SC 527. Basing his submission on paragraph Nos. 18 and 25 of the said decision, he contended that even if injunction cannot be issued under Section 94 of the Code because of the express prohibition mentioned therein still the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order XXXIX of the Code. Even if the Court has come to a finding that this is a matter which is not covered under Order XXXIX of the Code, still then the Court has jurisdiction to grant injunction in exercise of its inherent power under Section 161 of the Code. The legal proposition cannot be disputed. Mr. Khan learned counsel for the respondents does not join the issue to the said proposition.
9. Mr. Rai also relied upon a decision in the case of Salim v. 1st Additional Civil Judge, Senior Division, Saharanpur and others, 1997 (1) ARC 90. In paragraph Nos. 12 and 14 of the said decision, reliance was placed on various decisions on the question that whether any injunction should be granted in case when appears that if a decree is passed in the suit, in that event the construction shall require to be pulled down in such cases. Relying on the various decisions in the said paragraph it was held that the property should be preserved. This proposition of law is also not disputed by Mr. Khan.
10. Mr. Rai also relied on the decision in the case of Ram Kalap v. IVth Additional District Judge. Gorakhpur and another, 1989 ACJ 13. He specifically relied on paragraph 3 of the said judgment which refers to a decision in the case of Harish Chander Verma v. Kayastha Pathsala Trust and others, JT 1988 (1) SC 625, wherein it was held that when the main relief is claimed to be a permanent injunction and if the same is refused in that event the suit would become nullified and therefore, such a situation should not be allowed to come in the way and, therefore, it was held that where a permanent injunction has been sought it would not be appropriate to permit the defendant to raise the constructions subject to the condition that in the event of the decree being affirmed, the construction shall be pulled down. Apart from the convenience of the parties and equity arising in the facts of the case, a larger principle is involved in the matter. On the face of a decree for permanent injunction it is not appropriate for the appellate court to allow it to be nullified before the appeal is disposed of.
11. He also relied on the decision in the case of Dalpat Kumar and others a Prahlad Singh and others, 1992 (1) ACJ 1. Relying on paragraph 5 of the said decision, he contends that the existence of the prima facie right and infraction of the enjoyment of property is condition for the grant of temporary injunction and as such a condition is very much present in the instant case since a bona fide contention as has been stated requires investigation and decision on merit. The same should be treated to be sufficient prima facie case itself for grant of injunction and non-Interference by the Court would result in irreparable injury to the parties seeking relief. These are well-settled propositions and, there cannot be any two opinion. But, however, a case has to be decided on the basis of the merit on each case depending on the facts and circumstances that might arise. It is the Court who has to weigh the materials before it and balance the same so as to do justice. The primary endeavour of a Court is to dispense justice and see that nothing stands in the way of justice and that injustice is net done. Therefore, on the basis of the above proposition, as contended by Mr. Rai, we may now examine as to how far the said propositions could be attracted in the present case in order to justify the order passed by the lower appellate Court.
12. In the present case, it appears that parties had filed their affidavits as well as copies of their respective documents on the basis of which the lower appellate court had proceeded. So far as the 1991 agreement is concerned, it was found that in the said agreement certain amount of money was paid to the erstwhile vendor which has been found by the lower appellate court to have been mentioned in the sale deed of 1992 in respect of some other property which was purchased by the plaintiff-petitioner from the same vendor and the Court has come to a finding that the amount mentioned in the 1991 agreement stood adjusted against the subsequent sale that has come into being by virtue of 1992 deed. Nothing has been shown to this Court that the said finding is perverse. If it has been so recited in the 1992 deed which is also a registered one, in that event, the same cannot be rescinded or resiled from by the plaintiff who is a party to the said deed. If that amount is adjusted in that event, it is very difficult to hold that the right under the 1991 agreement is still available to the plaintiff. But then this is only a prima facie tentative finding for the purpose of deciding the injunction application and shall not have any effect on the decision of the suit on merit. This very finding shows that the plaintiff has not been able to make out a prima facie case for the purpose of permanent injunction simply on the basis of an agreement entered into by him in 1991 that too which he had sought to be relied upon on 1992 deed. It also prima fade appears that there is every possibility of specific performance of the said agreement being barred by limitation. Therefore, it cannot be said that in coming to such a prima facie finding, the lower appellate court was wrong. Even from the report of the Commissioner. It appears that a wall of the height of 14 ft. has been raised whereas in the affidavit itself, the defendant Nos. 6 and 7 had stated that the wall was raised upto 11 ft. Therefore, it appears that the construction might have been started long before. Therefore, prima fade it appears that the plaintiff has not come in right moment.
13. Then again it is alleged that the defendant Nos. 6 and 7 had purchased the property after depositing the fees for conversion of Nazul land into freehold and the sale deed was executed some time in early part of 1996. According to Mr. Rai, the property admitted to be Nazul and ft requires conversion and unless there is a permission from the authority concerned, there could not be any sale of the property. It is not disputed that such permission can be granted for sale when the property is converted into free hold is approved. Admittedly, the plaintiff has not taken any step or had tendered any amount to get the property converted into freehold. This also goes to show that the plaintiff was not serious for enforcing his right under the agreement.
14. The injunction is being asked in aid of enforcement or assertion of the right. One cannot ask for injunction unless he seeks to assert his right. Without seeking specific performance of the contract why the plaintiff had sought for injunction alone is not understood. Even when filing the injunction, the right which is sought to be enforced is to preserve his right of specific performance. But that very relief is not being asked for though it was open to him to do so. In order to obtain specific performance of contract, one has to assert that he is ready and willing to perform his part of the contract and without which, a suit for specific performance would not be maintainable. When such a situation is not being asserted and right to specific performance not being sought to be enforced, it appears that the plaintiff is more interested in injunction than in the ultimate relief. This is also a fact which will weigh with the Court while considering the question of the injunction.
15. For all these reasons, I have not been able to find any infirmity or perversity or illegality or irregularity in the order of the lower appellate Court. Therefore, I am not inclined to interfere with the same. The petition, therefore, falls and is accordingly dismissed.
16. Before parting with the matter, I once again observe that whatever observation has been made in this order shall be tentative and for the purpose of deciding the injunction matter only and shall not be taken into consideration or relied upon while the decision in the suit would be given. The suit should be decided on its merit without being influenced by any observation made by the lower appellate court or in this order in any manner whatsoever.
17. Since the injunction has been refused, therefore, it is expected that the learned trial court should decide the matter as early as possible. Since the defendant Nos. 6 and 7 are present before this Court and are main contesting parties, therefore, they should file their written statement within a period of two weeks from date, if not already filed.
18. It is submitted by Mr. Khan that he will intimate the gist of this order to other defendants with whom his clients are sailing in the same boat and it is their responsibility to secure appearance of other defendants who would be entitled to file their written statement within a period of three weeks from date.
Despite the above order, the learned trial court shall take steps for effecting service simultaneously under Order V, Rule 20 as well as Rule 19A of Code of Civil Procedure in view of extreme exigency arising in the facts and circumstances of the case on the other defendants who may not have appeared in the meantime. The plaintiff shall also take steps for effecting service as aforesaid on the other respondents within one week. Such service is to be effected within two weeks from the date of putting requisites by the plaintiff. This service shall be in addition to the undertaking given by Mr. Khan on instruction from his clients who would secure the presence of other defendants.
19. After the written statement is filed, the issues should be settled within two weeks thereafter. The parties shall disclose their documents and all proceedings under Order XI of the Code should be completed within two weeks thereafter. The suit should be decided thereafter within a period of two months. If necessary the Court shall continue the hearing successively. Mr. Khan submits that the defendants will not take any adjournment and will co-operate in the early disposal of the suit.
20. Let a certified copy of this order be supplied to the learned counsel for the parties on payment of usual charges within 48 hours.