IMPORTANT POINT
A suit for mandatory injunction is not maintainable under Section 41(h) of the Specific Relief Act when an equally efficacious remedy is available, such as a suit for specific performance.

JUDGMENT :

ALKA SARIN, J.

CM No. 7043-C of 2019

For the reasons stated therein, the delay of 6 days in refiling the present regular second appeal is condoned. Application stands disposed off.

RSA No. 2583 of 2019

1. This is a second appeal by the plaintiff-appellant against the judgments and decrees dated 31.07.2015 and 30.07.2018 passed by the Trial Court and the First Appellate Court, respectively, whereby it's suit for mandatory injunction has been dismissed.

2. The plaintiff-appellant approached the Court seeking the relief of mandatory injunction for directing the defendant-respondents to hand over the physical possession of the demised premise being No. 803 Udyog Vihar Phase-V, Gurgaon and further for directing them to execute and register the lease agreement on the terms and conditions as agreed on 09.02.2013 in favour of the plaintiff-appellant. It was averred that the plaintiff-appellant is engaged in the business of manufacturing cloth garments and was working from it's site at B-23 Udyog Vihar, Gurgaon and since the plaintiff-appellant wanted to expand it's business it needed some more property within Gurgaon and started searching for a suitable property through a broker Sh. Jasvinder Singh Seth. It was further averred that after seeing many properties the said broker showed the property bearing No. 803 Udyog Vihar Phase-V, Gurgaon and thereafter the plaintiff-appellant through the broker approached the owners of the said property i.e. the defendant-respondents. A deal was struck between the parties wherein the plaintiff-appellant agreed to take the property on lease with immediate effect on a month lease of Rs.1,90,000/- per month wherein a sum of Rs.47,500/- was to be paid to each of the defendants separately in lieu of the lease rent. As the meeting was fruitful between the parties, the points discussed between the parties were reduced into writing on a piece of paper on 09.02.2013. It was further averred that the defendant-respondents agreed that the lease deed would be in writing with all the terms and conditions agreed between the parties and would be got registered with both parties bearing the registration expenses in equal proportion. It was the stand of the plaintiff-appellant that the demised premises was not in a habitable condition and required removal and construction of certain portions as per it's requirement and the defendant-respondents undertook to clear all the issues pertaining to the removal and raising of construction before execution of the lease agreement and handing over the possession. As all the terms and conditions were duly agreed between the parties, the plaintiff-appellant handed over four cheques of Rs.47,500/- each (total Rs.1,90,000/-) in favour of the four defendant-respondents which were encashed by them. However, despite e-mail/letter sent to the defendant-respondents, they did not come forward to prepare the demised premises for lease and execute the lease agreement in favour of the plaintiff-appellant. It was further submitted that the plaintiff-appellant had ordered material of Rs.2.5 crores to be transferred in the demised premises but the defendant-respondents had not given the possession of the demised premises and had misappropriated the amount of rent and committed a criminal offence. A complaint was also lodged with the Police. Hence, the present suit. Upon notice, the defendant-respondents appeared and filed written statement raising preliminary objections of maintainability, non-joinder of necessary parties, cause of action etc. On merits it was submitted that they were the owners in possession of the demised premises and Mr. Jasvinder Singh Sethi had contacted them for leasing the same and agreement was entered between parties on 09.02.2013. Replication was not filed.

3. On the basis of the pleadings of the parties the following issues were framed by the Trial Court:

1. Whether the plaintiff is entitled for the relief as prayed for? OPP

2. Whether the plaintiff has no cause o