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IN THE HIGH COURT OF ALLAHABAD
N. N. MITHAL, G. K. MATHUR
RAJENDRA KUMAR - Appellant
Versus
MAHENDRA KUMAR MITTAL - Respondents
F. A. F. O. 497 Of 1990
Decided On : 05/15/1991
SPECIFIC PERFORMANCE - AGREEMENT TO SELL - INJUNCTION - MAINTAINABILITY - SUBSISTING AGREEMENT TO SELL - ESSENTIAL CONDITIONS - SECTION 41 (H) OF THE SPECIFIC RELIEF ACT, 1963.
Fact of the Case:
Plaintiff-appellant entered into an agreement to purchase land from respondents Nos. 1 to 4. He paid an advance and took possession of the land. However, the respondents sold the land to other parties. The plaintiff-appellant filed a suit for permanent injunction to restrain the respondents from alienating the property and for specific performance of the contract.
Finding of the Court:
The court held that the suit for permanent injunction was not maintainable as an equally efficacious relief could be obtained through a suit for specific performance of the contract. The court also found that the balance of convenience and prima facie possession of the land was with the respondents.
Issues: 1. Whether a suit for permanent injunction is maintainable when an equally efficacious relief can be obtained through a suit for specific performance of the contract? 2. Whether the agreement to sell the land in dispute was alive or had come to an end? 3. Whether time was the essence of the contract? 4. Whether the plaintiff-appellant had the means and was ready and willing to purchase the land?
Ratio Decidendi: 1. Section 41 (h) of the Specific Relief Act, 1963 provides that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding. 2. The court found that the agreement to sell the land in dispute was alive as it had not been cancelled in writing and time was not the essence of the contract. 3. The court did not consider it expedient to look into the question of whether the plaintiff-appellant had the means and was ready and willing to purchase the land as it was not relevant to the issue of maintainability of the suit for injunction.
Final Decision: The appeal was dismissed and the interim injunction order dated 23-5-1990 was vacated.
( 1 ) THE plaintiff has preferred this appeal against the order dated 12/04/1990 passed by the Civil Judge, Bareilly, in Suit No. 225 of 1990 (Rajendra Kumar v. Mahendra Kumar Mittal): whereby the application for issue of ad interim injunction has been rejected.
( 2 ) IN the appeal, on the application of the appellant for injunction, respondents Nos. 1 to 4 were restrained from alienating the property by order dated 23/05/1990, in the meanwhile. The respondents Nos. 1 to 4 filed an application for vacation of the aforesaid interim order dated 23/05/1990, supported by counter-affidavit of Mahendra Kumar Mittal, respondent No. 1. The appellant Rajendra Kumar has filed rejoinder affidavit and supplementary affidavit.
( 3 ) WITH the consent of the counsel for the appellant and respondents Nos. 1 to 4 we proceeded to dispose of the appeal at the admission stage.
( 4 ) THE facts of the case, in brief, are that respondents Nos. 1 to 4 entered into an agreement on 9/12/1988 to sell the land measuring 4,000 square yards, situate within the municipal limits of Bareilly City, for a sum of Rs. 8 lacs in favour of the plaintiff-appellant, which was registered on 13/03/1989 and Rs. 50,000. 00- were received by them as advance towards consideration on the date of the agreement. It is alleged that Sanjay Kumar, defendant No. 6, the appointed attorney of respondents Nos. 1 to 4, gave possession of the land in question on 9/12/1988 to the appellant after receiving sum of Rs. 1,10,000/ - from the appellant and the appellant had developed, levelled and constructed kharanja. The respondents Nos. 1 to 4 have sold certain plots the total area of them comes to 1430 square yards through six sale deeds dated 14/08/1989 and three sale deeds dated 6/09/1989 and that there remains the area measuring 2564 square yards intact on the spot. It is alleged on behalf of the appellant that the sale deeds were executed with his consent in accordance with the terms of the agreement. It is further alleged on behalf of the plaintiff-appellant that the respondents Nos. 1 to 4 had agreed to sell 150 square yards land out of the area in question for a consideration of Rs. 30,000 / - to Rajendra Kumar, but did not execute the deed even after the receipt of the aforesaid sum. Plaintiff-appellants contention has been that the owners of the land, respondents Nos. 1 to 4, have in all received Rs. 4,77,388. 00 towards consideration and that only a sum of Rs. 3,22,612/ remains to be paid. With these allegations the plaintiff-appellant, reserving his right to file suit for specific performance of the contract, filed suit in respect of the area measuring 2564 square yards for permanent injunction restraining the owners-respondents evicting him forcefully from the land and transferring it to any person other than the plaintiff-appellant. The Sub-Registrar, Bareilly, has also been made defendant No. 5 in the suit.
( 5 ) AT the time of the institution of the suit the plaintiff-appellant applied for issuing of temporary injunction against the defendants Nos. 1 to 5 - they are respondents Nos. 1 to 5 here.
( 6 ) THE respondents Nos. 1 to 4 opposed the application on the ground that the suit for injunction is not maintainable and that the agreement in question has been terminated by a legal notice and that the plaintiff-appellant has no means to purchase the land and had never been ready and willing to purchase and the suit is barred by S. 80 and O. XXVII, R. 5a of the Code of Civil Procedure against defendant No. 5.
( 7 ) THE learned trial Court by the impugned order rejected the application of temporary injunction.
( 8 ) FEELING dissatisfied with the order of rejection, the plaintiff has preferred this appeal.
( 9 ) THE learned counsel for the appellant, while arguing the appeal, did not challenge the finding of the Court below that the defendant No. 5, Sub-Registrar, Bareilly, is an unnecessary party and the suit against him was hit by the provisions of S. 80 and O
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