In a suit for specific performance of contract, the court cannot restrain the defendant from making repairs or construction on the suit premises, as may be necessary, which is not likely to obstruct performance of the contract.

S.N.Jha, J.

1. This appeal under Order XLIII Rule 1(r) of the Code of Civil Procedure by the defendant is directed against the order allowing the plaintiffs petition for mandatory injunction and directing the defendant-appellant to demolish the disputed wall on the suit premises.

2. The plaintiff-respondent No. 1 filed Title Suit No. 16 of 1996 for specific performance of contract of sale and for setting aside the subsequent sale-deed dated 11.12.95 executed by the defendant No. 1 in favour of defendant No. 2 with respect to the suit property. His case, so far as relevant, is that defendant No. 1 agreed to sell the property mentioned in Schedule Ka of the plaint to him for Rs. 70,000.00 out of which Rs. 55,000- was Paid as advance on 8.12.95. When the parties reached Buxar where the deed was to be executed, defendant No. 1 changed his stance and demanded a higher price. The Plaintiff sent lawyers notice asking the defendant to execute the sale-deed. He later learnt that on 11.12.95 the defendant No. 1 had executed sale-deed with respect to the property in question in favour of defendant No. 2. He got the facts verified from the Registration office and later filed the suit.

3. On 20.1.96 he filed a petition to restrain the defendants from executing any transfer deed or changing the physical feature of the property. The Court while issuing show cause notice to the defendants directed them to maintain status quo. Advocate Commissioners were appointed one after the other for making local inspection, who submitted their report. According to the Advocate Commissioners, the defendants had made certain construction after knowledge of the O: 3iof the status quo. The Court thereupon passed the impugned order on 18.1.97 directing defendant No. 2 appellant to remove the construction.

4. Mr. Hariji Upadhyay, learned Counsel for the appellant, Submitted that in a suit for specific performance of contract the Court has no power to issue injunction muchless restrain the defendants from making any construction over the suit property. Mr. Rajendra Narayan, learned Counsel for the a Plaintiff Submitted that as the impugned construction was made after the order of status quo, the Court rightly directed the defendant-appellant to remove the construction. Since the impugned act of construction was in contravention of the order of the Court, this Court Should not interfere in the matter.

5. The moot point for consideration, in my opinion, is whether in a suit for specific performance of contract the defendant can be restrained from making construction etc. on the suit land/premises. If the initial order was a bad or improper order, the latter order i.e. the impugned order will have to be interfered with, for it in effect seeks to restore the previous order.

6. In his celebrated Treatise on Specific Performance of Contract (Sixth Edition) Fry states that the jurisdiction of the Court in issuing injunction in an action for specific performance of contract arises in three ways (i) as an instrument to specifically enforce the contract itself or some Part of it, (ii) as incidental or ancillary to the performance of the contract, and (iii) for giving effect to rights resulting from the non-performance of contract. Dealing with the jurisdiction of the Court in cases falling in the first category he states that where the contract contains express negative as well as positive terms, and the positive terms are capable of Specific Performance by the Court, the Court may enforce by injunction the observance of the negative term; for by so doing it promotes the complete performance of the contract as a whole. Cases where the Court grants injunction restraining the breach of any implied term of contract come in his category. In the second category of cases the Court issues injunction to prevent the defendant from doing some thing which may be inconsistent with the equity claimed by the plaintiff or embarrassing to the plaintiff by dealing with the propert