High Court
Case Details
FAO 1/2013 BEFORE HON’BLE MR. JUSTICE A.C. UPADHYAY
Facts
By filing this appeal under Order XLIII, Rule 1(r) read with Section 105 of the Civil Procedure Code, the appellant has challenged the judgment and orde r dated 18.10.2012 passed by the learned Civil Judge, Dibrugarh in Misc. (J) Cas e No. 47/12 (arising out of T.S. No. 36/12), allowing the prayer of the responde nt/plaintiff for grant of injunction restraining the appellant/ defendant from a lienating and/or transferring the disputed land to any other third party during pendency of the suit.
Legal Reasoning
The Hon’ble Supreme Court in Kashi Math Samsthan (supra) observed that i t is well settled that in order to obtain an order of injunction, the party, who seeks for grant of such injunction has to prove that he has made out a prima fa cie case to go for trial, the balance of convenience is also in his favour and h e will suffer irreparable loss and injury if injunction is not granted. But it i s equally well settled that when a party fails to prove prima facie case to go f or trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open t o the Court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss an d injury, if no injunction order is granted. Therefore, keeping this principle in mind, Court is to see whether the appellant has been able to prove prima faci e case to get an order of injunction during the pendency of the appeal. Considering the above discussion and observation, I do not find any meri t in this appeal. However, considering the facts and circumstances as well as th e urgency in the matter, which binds both the parties, necessitating early dispo sal of the suit pending before the Trial Court, I propose to dispose of this app eal with an observation that the learned Trial Court would make an endeavour to dispose of the suit as early as possible, preferably within a period of 2(two) m onths from the date of receipt of a certified copy of this order.
Arguments
I have heard Mr. N Choudhury, learned counsel for the applicant and Mr. BD Das, learned Sr. counsel for the opposite party. Mr Choudhury, learned counsel for the appellant submitted that in terms of the provisions of Section 41(e) of the Specific Relief Act, injunction cannot be granted to prevent the breach of a contract the performance of which would n ot be specifically enforced. Learned counsel also pointed out that in terms of t he provisions of Section 14 of the Specific Relief Act, a contract cannot be spe cifically enforced where non-performance of which compensation in money is an ad equate relief and such other contract the performance of which involves the perf ormance of a continuous duty which the Court cannot supervise. Mr Choudhury, learned counsel for the appellant by drawing attention of the Court to the relief claimed by the appellant, submitted that specific perfor mance of the contract sought to be enforced by the plaintiff-opposite party is n ot enforceable in the eye of law, therefore, there is no legal ground to grant t emporary injunction against the petitioner. In reply to the above contention, Mr. BD Das, learned Sr. counsel for th e respondent relying on the decision of the Hon’ble Apex Court reported in Kashm i Math Samsthan & Anr. -vs- Shrimad Sudhindra Tirtha Swamy & Anr., (2010) 1 SCC 689, submitted that the learned trial Court has precisely took into consideratio n the well settled principles in granting the temporary injunction and, accordin gly, passed the order in favour of the respondent/plaintiff. By the impugned ord er, the learned Trial Court only restrained the appellant/ defendant from aliena ting and/or transferring the property in question till disposal of the suit, the refore, other rights of the applicant, over the suit land remained undisturbed. The facts relating to filing of this appeal may be stated as follows:- The respondent/ plaintiff entered into an agreement on 30.10.2011 with t he appellant/ defendant, who is the owner of a plot of land measuring 2 Kathas c overed by Dag No. 499 of P.P. No. 241 of Mouza- New Amolapatty, Dibrugarh Town. In the said agreement it was stated that the respondent being the first party wi ll construct a multi-storied building over the said land and the appellant being the absolute owner of the suit land will be responsible for getting the land va cated and hand over possession of the land to the respondent for such constructi on. The total floor area of the aforementioned building was to be shared in the ratio of 70:30 between the respondent and the appellant. Pursuant to the aforesa id agreement, the respondent had spent Rs.11,32,000/- for the purpose of putting the terms of the said agreement into execution. On 19.6.2012 the respondent came to known from reliable sources that the appellant was attempting to negotiate with a third party and, hence, the respon dent prayed before the Court to grant a decree of permanent injunction restraini ng the appellant from entering into any other agreement for sale and to hand ove r possession of the suit land to a third party, pending disposal of the suit. On careful consideration of the materials on record, it appears that the respondent entered into an agreement with the appellant and have spent sufficie nt amount of money in pursuance of the said agreement and now the appellant is s aid to have been attempting to negotiate with a third party. The balance of conv enience is also in favour of the respondent as he has spent sufficient amount of money pursuant to the agreement signed between the parties, which subsists as o n date. Considering the matter in its entirety, irreparable loss may result, if the breach of contract is not taken care of. As all the golden principles are in favour of the respondent, in my opin ion, the learned trial Court has rightly granted temporary injunction in favour of the respondent. Although Mr Choudhury submitted that there is legal bar in granting temp orary injunction in terms of Section 41(e) read with Section 14 of the Specific Relief Act, but it would be too early to say whether an injunction can be finall y granted or not in order to prevent the breach of contract the performance of w hich would not be specifically enforced and it would be again premature to conce ive whether plaintiff would be entitled to decree of specific performance of the contract in terms of the agreement signed between the parties.