Court No. - 33
Case :- FIRST APPEAL FROM ORDER No. - 2507 of 2017 Appellant :- Asif Javed Khan Respondent :- M/S Sai Traders Thru' S.K. Gupta & 2 Others Counsel for Appellant :- Kunwar Janmejay Pratam Si Hon'ble Manoj Misra,J. Hon'ble Rohit Ranjan Agarwal,J.
Heard learned counsel for the appellant and perused the record.
The instant appeal has been filed against the order dated 29th April, 2017, passed by Civil Judge (Sr. Div.), Bijnor in Original Suit No.614 of 2015, by which application no.6-C, filed by the plaintiff- appellant under Order 39 Rules 1 and 2, has been rejected.
A perusal of the plaint, which is at page 142, would reveal that the appellant had instituted Original Suit No.614 of 2015 for permanent prohibitory injunction to restrain the defendants including their servant/ agent from creating any third party interest over the suit property without fulfilling their obligations under agreement dated 13.5.2013 and time extension instruments dated 1.3.2014 and 29.11.2014 and memorandum as well as notice dated 29.05.2015 and not before they get the ban imposed by Registrar, Societies, Moradabad lifted and are in position to hand over physical possession.
The plaint case in short was that a registered agreement for sale was entered into between the plaintiff and M/s. Sai Traders through its partner Sumit Gupta for sale of land on 13.5.2013. As per the agreement certain earnest money was paid and the balance was to be paid by or before execution of the sale deed for which 30.02.2014 (which had to be read as 28.02.2014) was fixed. However, as there was certain litigation between partners and some restraint order of the Registrar, the date was extended, initially, up to 30.11.2014, thereafter up to 31.08.2015 and, lastly, up to 28.02.2016. It was alleged that without removing the hurdles in execution of the sale deed in favour of the plaintiff, possession as well as interest in the property was being illegally transferred in favour of third parties. Hence, the suit.
In this suit an application 6C was filed seeking temporary injunction to restrain the defendants from creating any third party interest.
The defendants filed their objection raising various pleas. They denied that the time period for performance was extended up to 28.02.2016. They also denied some of the in-between transactions. It was also claimed that the defendant was present at the Registry Office on 31.08.2015 for performing his part.
By the order impugned, the interim injunction application 6-C was rejected by the court below by observing that the plaintiff-appellant has no prima facie case as a mere agreement for sale confers no right and other wise also he would not suffer irreparable loss and injury by refusal of interim injunction, inasmuch as, the rights of the plaintiff would be protected by law of lis pendence i.e. Section 52 of the Transfer of Property Act.
Learned counsel for the plaintiff-appellant has contended that the observation of the court below that the plaintiff's right are protected by section 52 of the Transfer of Property Act and therefore no injunction need be granted, is perverse, particularly when it was not disputed between the parties that they had entered into an agreement for sale of the suit property and by the date of institution of the suit the time for performance of the contract had not arrived. It has been submitted that if third party rights are created, various complications would arise and therefore pending suit proceeding there was a prima facie case for an interim injunction to restrain the defendants from creating any third party interest.
We have considered the submissions and have perused the record. Upon perusal of the record, we find that the plaint as instituted does not seek relief for specific performance of the agreement. Further, it is not the case of the plaintiff that he had entered into possession of the suit land pursuant to the agreement. In fact, admittedly, the agreement is without possession. Further, the agreement lays down mutual rights and obligations. One of them is of award of compensation / damages to the second party, which would be the plaintiff herein, in case of failure on the part of the first party, and of forfeiture of earnest money in case of failure on the part of the second party. According to the plaintiff, last date for performance was extended up to 28.02.2016 whereas according to the defendant last date was 31.08.2015. Be that as it may, by now the last date, whatever it be, has passed. Section 41 (H) of the Specific Relief Act provides that an injunction ought not to be granted when equally efficacious relief can be obtained by any other usual mode of procedure except in case of breach of trust. As, admittedly, there was a mere agreement for sale in favour of the plaintiff, which itself does not confer any right over the immovable property and it is not the case that the plaintiff has entered into possession, the appropriate course for the plaintiff is to sue for specific performance or for damages. Under the circumstances, we do not propose to interfere with the order of the trial court, particularly when the doctrine of lis pendence can always be invoked for protection of ones right, if any.
It is made clear that we have not expressed any definite opinion on the maintainability/merit of the suit.
Subject to above, the appeal is dismissed. Order Date :- 26.11.2018.
Rks.