The court emphasized that the maintainability of a suit should be determined based on the cause of action pleaded and that the absence of another co-owner does not necessarily bar the relief sought against the defendant.

Alok Singh, J.

1. Defendant-petitioner has invoked supervisory jurisdiction of this Court, challenging the order dated 28.09.2010 passed by learned Civil Judge (Senior Division), Panchkula, thereby rejecting the application moved by defendant No. 1-petitioner herein under Order 7 Rule 11 C.P.C.

2. The brief facts of the present case are that plaintiff respondent No.1 has filed a suit for permanent prohibitory injunction restraining the defendant from alienating/disposing off the suit property to any other person except the plaintiff and for mandatory injunction directing defendant No.l to complete the sale in favour of the plaintiff in terms of oral agreement and token receipt dated 25.03.2010.

3. The plaintiff has, inter-alia, alleged in the plaint that defendant No.1-has approached the plaintiff for sale of 10 marlas single storey house and she told the plaintiff that she is absolute owner of the suit property and the same is free from all sorts of encumbrances; plaintiff has accepted the proposal of defendant No.l on 25.03.2010 and all the conditions of sale were settled orally in the presence of Rajesh Sharma of Balaji Estate, Daya Sagar Sharma and S.A. Khan and total sale consideration agreed was Rs.1,48,50,000/-; it is agreed between the parties that sale shall be completed by 30.05.2010; at the time of agreement, defendant No.l was not having the documents of the property and it was settled that a sum of Rs.2 lac shall be paid as token money and Rs.20 lac shall be paid as advance money on 29.03.2010 when defendant No.l will show the documents of ownership and formal agreement to sell will be executed. It is further averred in the plaint that plaintiff has paid Rs. two lakhs on 25.03.2010 and receipt was duly executed specifically stating therein that Rs. twenty lakhs shall be paid on or before 29.03.2010 at the time of execution of agreement to sell and rest of the sale consideration in full shall be paid on or before 30.05.2010, last date for the execution of sale deed. Plaintiff has further contended that he was ready with Rs.20 lac as per the agreement with defendant No. 1 and was always ready and willing to perform his part of the agreement, however, meanwhile, plaintiff came to know that defendant No. 1 is not the sole owner, rather, Mr. Om Parkash Sharma is the another co-owner. Plaintiff has also issued notice to defendant No. 1 to perform his part of the contract, however, defendant No.1 threatened to create third party interest,hence, plaintiff filed suit for permanent prohibitory injunction, as well as mandatory injunction.

4. Defendant no.l has moved an application under Order 7 Rule 11 C.P.C. saying therein that oral agreement to execute the agreement is nothing and cannot be enforced. It has been averred in the application that suit simplicitor for prohibitory injunction is barred by Section 41(h) of the Specific Relief Act, since plaintiff has failed to file suit for specific performance of the contract. Learned Trial Court vide the impugned order, rejected the application moved by defendant No.l, hence, defendant No.l has approached this Court by invoking jurisdiction of this Court under Article 227 of the Constitution of India.

5. Mr. A.S. Chandhiok, Senior Advocate, assisted by Ms. Vibha Dhawan, Advocate argued that since plaintiff himself has admitted in the reply to the application under Order 7 Rule 11 C.P.C. that he has not filed suit for specific performance, hence in view of Section 41(h) of the Specific Relief Act, suit for permanent prohibitory injunction was not maintainable. It has further been argued that in view of the dictum of the Apex Court in the matter of Speech and Software Technologies (India) Private Limited v. Neos Interactive Limited, (2009)1 Supreme Court Cases 475, agreement to execute agreement is not enforceable, hence, in any case, suit for mandatory injunction is not maintainable. It has further been argued that if agreement to execute agreement cannot be enforced hen