Court No. - 34
Case :- FIRST APPEAL FROM ORDER No. - 477 of 2017 Appellant :- Mayank Sharma Alias Meeku Respondent :- Pradeep Sharma Counsel for Appellant :- Pradeep Kumar Singh Counsel for Respondent :- Rajeev Kumar Upadhyay
Hon'ble Sudhir Agarwal,J. Hon'ble Shashi Kant,J.
1. Sri Pradeep Kumar Singh, learned counsel for the appellant has admitted that he has not complied with the conditional interim order dated 14.02.2017 passed by this Court, therefore, same has already stood vacated.
2. Heard Sri Pradeep Kumar Singh, learned counsel appearing for the appellant and Sri Rajeev Kumar Upadhyay, for the respondent.
3. As jointly requested, we proceed to decide this appeal finally at this stage on the basis of memo of appeal and documents placed before us alongwith stay application.
4. This is an appeal under Order 43 Rule 1 CPC, arising from the judgement and order dated 24.11.2016 passed by Kavita Mishra, Civil Judge (Senior Division), Agra, granting ad-interim injunction to plaintiff-respondent and directing present appellant, not only to maintain statue- qua, but also not to make any alteration or alienation of property to any one.
5. It is stated that defendant-appellant, who is builder, has entered into an agreement with plaintiff-respondent in respect of disputed land for construction of residential and commercial buildings, wherein it is mentioned that profit earned after sale of residential and commercial buildings accommodation was to be distributed equally between these two.
6. The plaintiff-respondent filed a suit seeking permanent/prohibitory injunction, alleging that terms and conditions of agreement dated 11.03.2015 (registered on 25.03.2015) were violated by defendant-appellant and constructions have been raised. The grounds taken in the plaint was that defendant-appellant quarrelled with plaintiff-respondent and threatened that he will forcibly take possession on constructed residential and commercial buildings and sell it out and will not give any share in the property to plaintiff-respondent.
7. Suit filed by plaintiff-respondent for interim injunction was opposed by defendant-appellant on the ground that facts stated in the plaint are incorrect, no ad-interim injunction can be passed in respect of the property in dispute, specially when parties are bound by terms and conditions of registered contract.
8. In this appeal defendant-appellant vehemently argued that no permanent/ prohibitory injunction can be issued, in as much as suit for permanent/prohibitory injunction was not maintainable, instead suit for specific performance of contract ought to have been filed by plaintiff-respondent.
9. Plaintiff-respondent could not dispute that with regard to property in question there is a registered agreement dated 11.03.2015 between plaintiff-respondent and defendant-appellant. It could also not be disputed that constructions have already been made over property in dispute.
10. Admittedly, grievance of plaintiff-respondent is that conditions of registered agreement have not been complied by defendant-appellant. If that is so, plaintiff-respondent should have filed a suit for specific performance of agreement and not for permanent/prohibitory injunction.
11. If there is breach of contract as alleged by plaintiff- respondent and no attempt is made to get contract enforced by making proper prayer in suit, it cannot be said that suit of injunction is properly filed and prima-facie case would lie in favour of plaintiff-respondent. Moreover, land in dispute is already in possession of defendant-appellant who has also raised construction there upon. In these facts and circumstances, even question of balance of convenience and irreparable loss cannot be said to lie in favour of plaintiff-respondent. Court below in taking view otherwise, in our view, has clearly erred in law and order under appeal cannot be sustained.
12. In view of the aforesaid, particularly from the perusal of registered agreement dated 11.03.2015, we are of the opinion that, if there is any breach of contract, there was no occasion for court below to grant an ad-interim injunction, restraining defendant-appellant from proceeding over property in dispute, because suit for interim injunction itself was not maintainable. Proper course for plaintiff-respondent is to file a suit for specific performance to enforce contract dated 11.03.2015.
13. For the reasons stated above, impugned order dated 24.11.2016 is hereby is hereby set-aside.
14. Appeal is allowed.
15. However, it is made clear that observation made in this order will not affect merits of the case on the proceedings before court below.
Order Date :- 26.2.2018/VKG