1986 Supreme(MP) 274

High Court Of Madhya Pradesh
V. D. GYANI
MUKESH - Appellant
Versus
DEONARAYAN - Respondents
Misc. Appeal 37 Of 1986
Decided On : 10/30/1986

Where a plaintiff-applicant comes forth with a case for specific performance of contract, based on an agreement, what the Court should see is the enforceability of an agreement and not actual possession of the land agreed to be transferred or sold. The balance of convenience is in favour of the plaintiff-applicant, who seeks specific performance of contract and makes out a prima facie case.

Headnote:

SPECIFIC PERFORMANCE OF CONTRACT - INJUNCTION - AD INTERIM INJUNCTION - BALANCE OF CONVENIENCE - PRIMA FACIE CASE - TRANSFER OF PROPERTY ACT, 1882, SECTION 52 - URBAN LAND (CEILING AND REGULATION) ACT, 1976, SECTION 20, 26 - HINDU MINORITY AND GUARDIANSHIP ACT, 1956, SECTION 6, 8 - COOPERATIVE SOCIETIES ACT, 1960, SECTION 64, 94 - ORDER 32, RULE 4, CPC - Where a plaintiff-applicant comes forth with a case for specific performance of contract, based on an agreement, what the Court should see is the enforceability of an agreement and not actual possession of the land agreed to be transferred or sold. The balance of convenience is in favour of the plaintiff-applicant, who seeks specific performance of contract and makes out a prima facie case.

Fact of the Case:

The plaintiff-appellant, a minor, through his natural guardian the mother, Laxmibai, filed a suit for specific performance of the agreement dt. 14-12-1982, entered into by defendant 1 to sell the 1/9th share of the suit land, bearing survey No. 3842, situated in Kasba Ujjain, for Rs. 35,000/- out of which Rs. 4000/- were paid by the plaintiff appellant as earnest money. The other co-sharers, defendants 2 to 9 also consented to this agreement by signing the same. One of the terms of the agreement provided that on a breach committed by defendant 1, the plaintiff will be entitled to claim specific performance of the agreement. It is also stated that defendant 1 obtained Rs. 2000/- from the plaintiff-appellant on 16-6-1984. Thus, the total amount received by him under the agreement is Rs. 6000/-. It is the plaintiff appellant's case that as a result of a public-notice published in the local press on 17-9-1984, he came to know that the suit land was being purchased by defendant 10. He, therefore, served a notice dt. 19-9-1984 on the defendants reminding them of the agreement dt. 14-12-1982 and called upon them for specific performance of the contract. Defendants Kesharbai, Satyanarayan and Kailash executed a sale deed in favour of defendant-respondent 10 on 3-10-1985. The plaintiff-appellant, therefore, filed a suit for specific performance of the agreement and applied for an ad interim injunction, which was opposed by the defendant-respondent on the ground that there was a prior agreement made in favour of Rameshchandra by defendants 1 to 9 on 17-11-1982 and that being the prior agreement, the plaintiff could not enforce his agreement against defendant-respondents. It was also contended that the contract being by a minor, whose natural guardian being his father, the contract entered into by the mother Laxmibai, was not a valid contract. It was also alleged that the plaintiff-appellant committed breach as he failed in getting the NOC from the Competent Authority under the Ceiling Act.

Finding of the Court:

The trial Court dismissed the plaintiff-appellant's application for an ad interim injunction upholding the objection raised by the defendant-respondent. It is in these circumstances that the present appeal has been filed by the plaintiff-appellant.

Issues: 1. Whether the suit was maintainable in view of S. 64 of the Cooperative Societies Act and want of a valid notice under the Act to respondent 12? 2. Whether the suit was not maintainable as against respondent 10 in view of S. 94 of the M. P. Co-operative Societies Act, 1960? 3. Whether the agreement dt. 14-12-1982 was invalid and unenforceable? 4. Whether the plaintiff had no prima facie case? 5. Whether the balance of convenience was in favour of respondent 10?

Ratio Decidendi: 1. The suit was maintainable as against respondent 10 as the Society was not registered at the time of the agreement and the business of proposed Society would not be covered under S. 64 of the Societies Act. 2. The suit was maintainable as against respondent 10 as the agreement filed by the respondent 10 clearly recites that the Society at the time of agreement was merely 'proposed' and had not come into legal existence. 3. The agreement dt. 14-12-1982 was not invalid and unenforceable as the mother of the minor plaintiff Mukesh can legally act as is guardian and maintain the suit as she is competent to act as such, in view of R. 4 (1) of O. 32, CPC. 4. The plaintiff had a prima facie case as the agreement, which the plaintiff entered into, cannot be held to be void at this stage and the respondents' case that the said agreement if enforced, would harm or damage the minor's interest, cannot be allowed to stand. 5. The balance of convenience was in favour of the plaintiff-appellant as the apprehended injury is apparent and the Society respondent 10 made its appearance on the stage while the last scene was being enacted.

Final Decision: Appeal allowed. The interim injunction, as prayed for by the plaintiff-appellant, in the circumstances is granted. It is ordered that defendant-respondent No. 1 shall not transfer his 1/9th share in the land in suit to anyone, including respondent No. 10 and parting with possession in any manner or altering the situation and character as it is existing on the date of filing of the suit. Respondent 10 is further restrained from altering the nature, changing or making any construction on the 1/9th share of the land in suit.