Madhya Pradesh High Court
Rishabh Jain vs Bebi Singh Jat on 17 January, 2018
1
HIGH COURT OF MADHYA PRADESH
WP No.7243/2016
(Rishabh Jain v/s Bebi Singh & Another)
Gwalior, Dated : 17.01.2018
Shri Ravindra Sarvate, learned counsel for the
petitioner/plaintiff.
Shri D.D.Bansal, learned counsel for the respondent/
defendant.
The petitioner has filed this miscellaneous petition being aggrieved by order dated 11.08.2016 passed by the Court of Second Additional Sessions Judge, District Sheopur (M.P.) in Miscellaneous Appeal No.400021/2015, whereby the First Appellate Court on the request of the defendant No.2 has rejected the relief granted in favour of the plaintiff by the trial Court asking the defendants not to alienate the suit property further on the ground that suit for declaration and permanent injunction was not maintainable in the hands of the plaintiff and he should file a suit for specific performance. Since the suit for declaration and permanent injunction was not maintainable, therefore the first requirement of availability of a prima facie case being absent, all the three aspects for grant of injunction namely prima facie case, balance of convenience and irreparable loss are not available, as a result, the trial court erred in granting interim injunction in favour of the plaintiff. Learned counsel for the petitioner submits that the order was not to alienate the property further and there was no need for the First Appellate Court to have reversed such finding of the trial Court in the miscellaneous appeal.
2HIGH COURT OF MADHYA PRADESH WP No.7243/2016 (Rishabh Jain v/s Bebi Singh & Another) On the other hand, learned counsel for the respondents placed reliance of the judgment of this Court in the case of Ajay Narang Vs. M/s. Ram Enterprizes as reported in ILR [2011] M.P., 2162 wherein placing reliance on the judgment of this High Court in the case of M/s. Jawahar Theatres Private Ltd. v. Smt. Kasturi Bai and Another as reported in AIR 1961 MP 102 this Court has held that the Court would ordinarily refuse to grant some mere negative injunction in cases where a plaintiff is in a position to claim a mandatory injunction or the specific performance of the contract. In the present case, the First Appellate Court has already held that since the plaintiff has failed to file the suit for specific performance, though such remedy is available to him, therefore there was no prima facie case in favour of the plaintiff even then injunction was granted by the trial Court. In the light of the law laid down in the case of Jawahar Theatres (Pr.) Ltd. and in the case of Ajay Narang (supra), this Court is of the opinion that the petitioner was required to show a prime facie case and also that how the suit for declaration and injunction was maintainable when the petitioner has yet not become owner of the suit property and had not filed the suit for specific performance. Since the suit for declaration and injunction simplicitor on the agreement to sale was not maintainable the 1st Appellate Court has rightly held that in absence of prima facie case no relief of injunction could 3 HIGH COURT OF MADHYA PRADESH WP No.7243/2016 (Rishabh Jain v/s Bebi Singh & Another) have been granted.
In view of such facts, the impugned order does not call for any interference. Thus, the petition fails and is dismissed.
(Vivek Agarwal) Judge AK/-
ANAND KUMAR 2018.01.20 17:02:25 +05'30'