Madhya Pradesh High Court
Neelam Khattar vs Sayyed Raees Ali on 1 November, 2017
CIVIL REVISION NO. 513/2017 01.11.2017
Shri Quasim Ali, learned counsel for the petitioner. Petitioner has filed this Civil Revision being aggrieved by order dated 2.8.2017 passed in Regular Civil Suit No. 952/2016 by the Court of IX Civil Judge Class II, Bhopal; whereby, learned Civil Judge has dismissed the application filed by the applicant/defendant under Order 7 Rule 11 of the Code of Civil Procedure, 1908. It is applicant's contention that the plaintiff had filed a suit for mandatory and permanent injunction and since in that suit proper court fee as per the valuation of the property has not been given and the agreement which was entered into was on stamp paper of Rs.100/-. Therefore, deficit stamp duty was payable on the said agreement and further since no consequential relief was sought, therefore, the suit was not maintainable and, therefore, the application under Order 7 Rule 11 CPC should have been allowed.
Learned counsel for the petitioner has placed reliance on judgment of this Court in Jawahar Theatres Private ltd. v. Kasturi Bai; wherein this High Court referring to the provisions of Section 56
(f) of the Specific Relief Act, 1877 has laid down that an injunction cannot be granted to prevent the breach of contract, the performance of which would not be specifically enforced. However, Section 57 of the Specific Relief Act is an exception to Section 56 of the Specific Relief Act. Thus, the ratio of the law is that unless the plaintiff brings his claim within the ambit of Section 57 of the Specific Relief Act, which provides for a contract comprising of an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the Court would ordinarily refuse to grant a mere negative injunction in cases where a plaintiff is in a position to claim mandatory injunction or the specific performance of the contract.
Learned counsel for the petitioner when asked to show the agreement on the basis of which he is claiming that negative injunction could not have been sought he fairly admits that such agreement has not been brought on record. Therefore, in absence of such agreement being on record, this Court is not in a position to decipher as to whether the case of the petitioner will fall in the exception carved out under Section 57 of the old Act. Further the Trial Court has categorically held that while deciding an application under Order 7 Rule 11 CPC plaint averments and documents are to be seen, therefore, this Court is of the opinion that in view of the fact that present applicant has not filed the agreement to make out an exception of Section 57 of the old Act, therefore, the trial Court did not err in dismissing application under Order 7 Rule 11 CPC as no such material was disclosed requiring the trial Court to travel beyond the pleadings.
In view of such facts being on record and there is a provision under Section 36 of of the Specific Relief Act, 1963 to grant the preventive relief at the discretion of the Court by injunction, temporary or perpetual, there is no illegality or arbitrariness in rejection of the application under Order 7 Rule 11 CPC as present applicant was required to make out a case from the pleadings on record.
Accordingly the petition stands dismissed.
(VIVEK AGARWAL)
JUDGE
vivek tripathi
VIVEK Digitally signed by VIVEK KUMAR
TRIPATHI
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KUMAR
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Pradesh,
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TRIPATHI
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Date: 2017.11.07 13:49:48 +05'30'