( 1 ) HEARD learned, counsel for the appellants against order refusing temporary injunction. In respect of a vast area of land, plaintiff has filed a suit for perpetual injunction claiming that after acquisition of a portion of the area, balance is in his possession, where the defendants are making an attempt to make constructions. In the suit Plaintiff prayed for temporary injunction.

( 2 ) A suit for relief of perpetual prohibitory injunction requires disclosure of facts to satisfy the requirements of S. 38 of the Specific Relief Act and absence of prohibition contained in S. 41 thereof. In such suit court has a discretion which is to be exercised judicially for grant of perpetual injunction as the language of S. 38 provides.

( 3 ) IN the present case, as is revealed, plaintiff claims the land to be his whereas defendant is attempting to raise construction on the land claiming the same to have been acquired. In such a dispute plaintiff ought to have sought for declaration of his title and consequential injunction, if at all he is in possession. Filing of a mere suit for perpetual injunction is a conduct of plaintiff to avoid the normal course and this conduct prohibits assistance of the court to get the relief under S. 41 (1) of the Specific Relief Act. Merely because of precedents to the effect that court can go into question of title of portion in absence of a specific prayer for declaration, plaintiff ought not to avoid the relief which he could have sought for. Since trial court is to consider this conduct of the plaintiff to examine to grant perpetual injunction we express no opinion at this stage, since plaintiff can seek amendment of plaint at a later stage of the suit. However, while considering prima facie case, this aspect is to be kept in mind. It is seen from the records filed before us that trial court was not satisfied about the identity of the land belonging to the plaintiff for which a Commissioner has been appointed, who has not yet submitted his report. In such situation it cannot be said that defendant is attempting to construct on the land in possession of the plaintiff which would be required for considering balance of convenience.

( 4 ) THERE is no whisper how there would be irreparable injury to the plaintiff if any construction is made by defendant during pendency of the suit. Construction, if any, would be subject to the result of the suit. Learned counsel for the appellant has relied upon a single Judge decision of this Court in 1989 All CJ 13 Ram Kalap v. IV Addl. Distt. Judge, Gorakhpur where a decision of Supreme Court reported in (1988) 1 JT (SC) 625 (2) Harish Chandra Verma v. Kayastha Pathshala Trust has been referred to. Before this Court, jurisdiction under Art. 226 of the Constitution was being exercised when a temporary injunction by the court was considered by the appellate court and adverse order was passed against the petitioner. It is doubtful whether the writ jurisdiction could have been exercised in such suit. However, while plaintiff, who was petitioner in this Court prayed not to press his writ application, the order was passed by this Court in a writ jurisdiction in favour of plaintiff. When a party abandons his prayer, it is difficult to appreciate how a court can grant him relief. However, we make it clear that the facts of the said decision by the learned single Judge are different and being distinguishable, requires no closer examination. As regards decision of the Supreme Court, there was already a decree of permanent injunction and keeping the same in view, the order was passed on equitable grounds. Such is not the position here. Accordingly, both the decisions are distinguishable.

( 5 ) LEARNED trial Judge has stated that many of the documents have not been filed for which he was not inclined to grant temporary injunction. Learned counsel for the appellant submitted that plaintiff had filed those documents. In the grounds of appeal, however, this aspect has not been specifi

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