IMPORTANT POINT
A mandatory injunction cannot be granted without a written agreement for the sale of immovable property, as required by the Registration Act and Transfer of Property Act.

JUDGMENT :

Hon'ble Kshitij Shailendra,J.

1. Counter and rejoinder affidavits have been exchanged between the parties, therefore, with the consent of learned counsel for the parties, the instant appeal is being finally decided.

2. Heard Sri Samir Sharma, learned Senior Counsel, assisted by Ms. Ananya Shukla, for the appellant, Sri Anoop Trivedi, learned Senior Counsel, assisted by Sri Vibhu Rai, for the respondent no.2 and Sri Ajay Kumar Patel, learned counsel holding brief of Sri Adarsh Bhushan, for the respondent no.1.

3. The instant appeal is directed against the order dated 31.05.2024 whereby Judge, Small Causes Court, Bulandshahr has rejected the injunction application Paper 6-C2 under Order 39 Rule 1 CPC in Original Suit No.1054 of 2022.

4. Assailing the order impugned, Sri Samir Sharma, learned Senior Counsel, submits that father of the defendant-respondent no.2, namely, Sri C.D. Bajpai was owner of an Industrial Plot No.C-4 and he had agreed to sell the same to the appellant for a sum of Rs.70,00,000/- (rupees seventy lac only). It is pleaded in the plaint that a sum of Rs.35,00,000/- (rupees thirty five lac only) was paid by the appellant to the father of defendant-respondent no.2 and despite assurances given by him, when sale deed was not executed, the suit in question was filed claiming a decree for mandatory injunction directing the respondent no.2 to execute the sale deed after receiving balance amount of consideration. During the pendency of the suit, an application seeking temporary injunction was filed with a prayer that the defendants be restrained from interfering in possession of the appellant, inasmuch as, according to the appellant, in lieu of part payment, he had been delivered possession of the property.

5. The trial court has rejected the injunction application by observing that, in fact, the suit was filed in the nature of a suit for specific performance of an alleged agreement, however, in order to avoid liability to pay court fees, the relief has been cleverly couched in the form of mandatory injunction. After placing reliance on various authorities, the trial court has observed that in absence of a written agreement and for want of its registration, as per the law applicable in the State of U.P., the appellant has no case. Submission of appellant, however, is that once possession was delivered to the appellant, he was entitled to protect his possession and, therefore, rejection of injunction application is not according to law and Section 53-A of Transfer of Property Act, 1882 would apply in favour of the appellant.

6. Per contra, Sri Anoop Trivedi, learned Senior Counsel, submits that there being no written agreement between the appellant and the father of the defendant-respondent no.2, the suit for mandatory injunction is not maintainable. He further submits that, at the most, the appellant might have a claim for refund of money in case he could succeed in establishing that the money had been paid in relation to the transaction of proposed sale, however, according to the Sri Trivedi, it was in respect of certain business transactions as disclosed in the objections against the injunction application and not concerning transfer of property.

7. Having heard the learned counsel for the parties, I find that mandatory injunctions can be granted under Section 39 of the Specific Relief Act, 1963. The said provision finds place in Chapter VIII and it applies when, in order to prevent breach of an obligation, it is necessary to compel performance of certain acts which the court is capable of enforcing and grant of injunction to prevent such breach is always in the discretion of the court. In the instant case, admittedly, the suit in question has not been filed claiming a decree for specific performance of an agreement, probably for the reason that there is no written agreement between the parties. Appellant’s claim for relief of mandatory injunction based upon oral understanding requires to be dealt with in the ligh