Madhya Pradesh High Court
Ganpatlal vs Nandlal Haswani And Ors. on 12 September, 1988
Equivalent citations: AIR 1989 MP 209, 1990 (0) MPLJ 542
Bench: T Singh
1. In the suit filed by respondent 1 in the Court below, appellant figured as defendant 13. In that suit, an order of temporary injunction being passed against him on 8-5-1987, he is aggrieved and has appealed. I have gone through the impugned order and I must say that criticism of appellant's counsel against that order of being cryptic and perfunctory is well justified.
2. There is no discussion at all in the impugned order of pleadings of parties to reach the conclusion that the plaintiff had a strong prima facie case to go to trial except the cryptic finding that in the suit for specific performance of contract for sale of the suit land, in the course of trial, it had to be determined to which of the parties had breached the contract. Surprisingly, despite having noted that the contract sought to be enforced was executed by defendant 2 in favour of the plaintiff and that the said defendant had sold the land to others and further sales were made of the same land, learned Additional District Judge did not take care to examine if under those circumstances, plaintiff could still hope to succeed in the suit and get a decree for specific performance. Similarly, even after having found that defendant 13 had got the sale deed executed in his favour by defendant No. 10 (herein respondent No. (1) on 22-11-1985 and had even started construction by digging foundation, little care was taken to consider in whose favour balance of convenience lay and whether the plaintiff would suffer irreparable injury if the temporary injunction prayed was not granted. Appellant's counsel is right, therefore, in submitting that in passing the impugned order, the court below did not act judiciously and as such the exercise of discretion by that Court cannot be upheld as unassailable and not liable to interference.
2A. Admittedly, as far back as on 17-1-1981, the agreement, in question, for sale of the suit land was executed by defendant 1 in , favour of the plaintiff and the suit was filed much belatedly on 3-5-1984, only against defendants 1 to 7. It was only on 23-11-1984 that appellants vendor, respondent No. 11, was impleaded in the suit. Be it also mentioned in this connection that the said respondent had purchased the land from respondents 3 to 5 who, in turn, had got the land similarly by a registered sale deed executed in their favour on 23-6-1982 by respondent 2. It had also come on record in the pleadings of parties (written statement by second respondent/defendant I having been filed on 22-4-1984) that the plaintiff may not have been ready and willing to perform his part of the contract inasmuch as he took no steps to get the sale deed executed despite notice being served on him by respondent 2 on 25-2-1982 even after the period of sixty days contemplated under the agreement for execution of sale deed had expired on 16-9-1981, Not only these facts did not enter into learned Additional District Judge's consideration in reaching the conclusion concerning plaintiff's prima facie case, it is clear on the face of the impugned order that the court below did not care to look into the contract itself copy of which was filed by the plaintiff in support of his case.
3. Indeed, Clause 3 of that contract is of signal relevance inasmuch as mention is made there of the suit land being proposed to be sold with the structures (Palore) existing thereon and in that view of the matter, the learned Additional District Judge was required to consider if plaintiff's plea that he was willing and ready to get the sale deed executed, but the other side was the defaulter could at all be accepted. Under the agreement in question, a sum of Rs. 5,000/- only had been paid out of total consideration of Rs. 33,000/-and the further contemplation was that expenses for execution of the sale deed and for permission to be obtained, "if necessary", from Land Ceiling Officer, shall be borne by the plaintiff. In that connection, learned Additional District Judge ought to have checked up the relevant law in the context of plaintiff's ease that defendant 1 had defaulted in arranging the requisite permission from the Land Ceiling Authority. In the impugned order, on those aspects of plaintiff's case, or for that matter weakness of his case, nothing has to be read.
3A. Counsel for plaintiff/respondent, Shri M. M. Kaushik cited authorities to support the impugned order, but I am of the view that those are of no avail. In Shankarlal Rathore, 1978 Jab LJ 51, it was held that in considering plaintiff's prima facie case, it had to be seen if the claim was not frivolous and that there was a serious question to be tried. In Ramadevi's case AIR 1987 Raj 143, plaintiffs had been put in possession of the suit land by the defendant under agreement of sale and in the context of that fact, it was held that plaintiffs could claim injunction against defendant from selling the land and from making any construction thereof. The situation in Venkat Dharmaji, AIR 1983 Bom 413 on facts was similar. In Mukesh v. Deo Narayan, AIR 1987 Mad Pra 85, it was held that the plaintiffs are required to show that they had a ''strong prima facie case in support of the right which they asserted" and the court was required to "found that the plaintiffs had a strong probability of ultimate success".
4. However, the law that is well settled is also that to sustain validly a claim for temporary injunction, it is not only that plaintiff has to establish his prima facie case, but he has to also establish further that balance of convenience lay in his favour and that he would suffer irreparable injury if the temporary injunction prayed was not granted. That was said by this Court in Shankarlal Rathore (supra) as also in a Bench decision of this Court in Durg Transport Company, AIR 1965 Madh Pra 142 which also Shri Kaushik cited to support the impugned order. In the last mentioned ease, it was held that temporary injunction "is never granted to establish a new state of things differently from the state which existed at the date when the proceedings were initiated". No doubt that this requirement is relatable to the finding of balance of convenience to be made by the Court in considering any prayer for temporary injunction. I had also an occasion to stress the primacy of the inexorable Rule that the three prerequisites must coexist and must precede an order of temporary injunction to validate exercise of jurisdiction by the Court concerned on the finding reached on the question of prima facie case, balance of convenience and irreparable injury. (See Saidur Rahman v. Stale of Assam, (1985) 1 Gauhati LR 438. In the case of Rajkumar Sanahal Singh, AIR 1985 Gauh 71, I look the view that in considering the question of balance of convenience, the Court has to consider the comparative mischief or inconvenience of both the parties and that the plaintiff who wants an order of injunction will further have to satisfy the Court that he will suffer irreparable injury if injunction is not issued. Very pertinently, it was further held that it was the nature of the injury which determined the balance of convenience.
5. Applying the law discussed above to the facts of the instant case, I have no doubt at all that the plaintiff/respondent had not been able to make out a case for temporary injunction and yet, unfortunately, he succeeded in obtaining an injunction. Because the suit is pending, I would not like to say further as to how the plaintiff failed to establish a strong prima facie case. It is still necessary to point out that the learned Additional District Judge failed to notice the weaknesses of plaintiff's case to which I have already adverted. It was not sufficient for him to merely hold that in suit, it would be determined as to which party had breached the contract. He ought to have considered materials available to examine the probability of plaintiff's ultimate success in the suit. He totally failed to apply his mind as pointed out earlier, to the recitals in the agreement in question and the land-ceiling law, as also averments made in the pleadings and, therefore, consequently, he failed evidently to examine, albeit tentatively, the question whether the plaintiff was ready and willing to perform his part of the contract so that the contract would be enforced.
6. Much less has to be said with respect of the other two requirements inasmuch as the plaintiff had apparently made no case of having suffered or likely to suffer irreparable injury. Even if the contract was found enforceable, he could be compensated in terms of money. The injury which he was likely to suffer was not such that he would have been left remedyless. Indeed, the trial court having found that the defendant had got sale deed in his favour and in exercise of his right of ownership, he had dug foundation for starting construction of his house in accordance with the permission he had obtained in that regard from the Municipal Corporation. I have no hesitation to take the view that balance of convenience lay in favour of the appellant/defendant and not the plaintiff/respondent. Indeed, the case of the defendant is that he is a petty official in the Accountant General's Office and had borrowed money for buying the land and building a house for providing shelter to his family. Thus, if the construction which he had undertaken was stopped, he was bound to suffer serious hardship. His loan was likely to be cancelled and the poor man was likely to be put into conditions and circumstances of penury and destitution. It is not disputed that the appellant/defendant was living in a hired house and, therefore, he could evidently claim that it was his constitutional right to shelter which he could enforce by building a house of his own.
7. It is, however, with boundless legal ingenuity that Shri Kaushik has surprisingly pressed the strange plea in this Court that the weakness of the defendant's case must be looked into and for that, with great vehemence and gusto, he placed implicit reliance on Section 52 of the Transfer of Property Act to invoke the doctrine of his pendence. Counsel's misconceived misadventure must meet the fate it deserves despite authorities galore cited in support of the contention pressed. Reliance on Samarendra Nath's case AIR 1967 SC 1440 is wholly misconceived because what was only held in that case was that Section 52 did not strictly apply to involuntary alienation but principle of his pendence still applied to such transaction. The Bench decision in the case of Dhansingh's case 1968 Jab LJ 698 : (AIR 1968 Madh Pra 229) was also not one in which the question of specific performance of any contract was involved and that also has therefore, no application to the instant case. The Bench decision in Ram Pyare's case AIR (978 All 318 is only to the effect that Section 52, Transfer of Property Act was not subject to Section 19(b) of Specific Relief Act. That was also not a case dealing with parties' right which could be agitated in a claim for temporary injunction.
8. The Bench decision in Muktakesi Dawn, AIR 1988 Cal 25, at first blush, appears to support Shri Kaushik's contention. Facts in that case, however, were different in that temporary injunction was prayed to restrain the defendant from selling the property to a third party and the court weighed equities on two sides. Evidently, therefore, care was taken to state clearly that "in a fit and proper case"
there may be occasion for grant of injunction "restraining transfers pendente lite". In the instant case, however, obviously the situation is wholly different as the appellant/defendant has already got transfer in his favour. In the context of instant controversy, it is necessary to stress that it is the strong "prima facie case "of the plaintiff that is the requisite to be considered; not the weak defence. This evidently flows from the elementary rule of jurisprudence of civil litigation in India that the plaintiff must stand or fall on the strength of his own case. Needless to add further that if injunction is equitable relief, specific performance of a contract is also nothing else and the courts in India have legal guidelines statutorily provided in the Code of Civil Procedure (Order 39, Rule 1 and 2) and Specific Relief Act (Sections 20, 37 and 41) for resolution of conflicts in such a case. While weighing the equities, the situation in England may be different where an equitable claim and the equitable relief are considered in terms of Common Law. The Indian Law is, "equitable relief is a discretionary relief" to be granted judicially in terms of statutory guidelines. I am, therefore, of the view that whether in the interpretation and application of Section 52 of Transfer of Property Act, or of Order 39, Rule 1, C.P.C., it would not be wise to seek assistance from English decisions despite what has been said in Muktakesi (supra). In that case, the Court relied on English decision in taking the view earlier mentioned. Under Section 41(a) read withSection 37(1) and Order 39, Rule 2, C.P.C., courts in India are obligated to consider "prima facie case" of plaintiff in terms of those provisions and not of Section 52, T. P. Act in the matter of grant of temporary injunction on plaintiff's prayer.
9. For the foregoing reasons, I would at once hold that the impugned order is not sustainable in law inasmuch as the Court below did not exercise its discretion judicially in granting temporary injunction against the appellant/defendant. However, for the purpose of disposal of this appeal, I would only say that the plaintiff/respondent is not entitled to claim temporary injunction as he has failed to prove that he would suffer irreparable injury if the injunction was not granted and I am also of the view that balance of convenience does not at all lie in his favour. On the question whether he has duly established "strong prima facie case" to go to trial, I would not explicitly say anything else and would rather observe than whatever I have earlier said in this order in that respect of the matter, shall not affect the jurisdiction of the trial Court to proceed with and decide the suit on merit.
10. In the result, the appeal is allowed and the impugned order is set aside. In the facts and circumstances of the case, I make no order as to casts.
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