Shanati Devi and Another vs M/s. Vipul Infrastructure Developers Limited and Others

L.N. Mittal, J.—Plaintiffs no. 1 and 2 have filed this revision petition under Article 227 of the Constitution of India assailing order dated 27.10.2012 Annexure P-4 passed by the trial Court and judgment dated 17.07.2013 Annexure P-5 passed by the lower appellate Court thereby declining application filed by plaintiffs (petitioners and proforma respondents no. 2 to 4) for temporary injunction. Case of the plaintiffs is that there was collaboration agreement dated 02.05.2005 Annexure P-3 between the plaintiffs and respondent no. 1-defendant (developer). The said agreement was in fact executed by Tahar Singh since deceased (predecessor of the plaintiffs) with defendant. The defendant had to complete the construction within 60 months from the grant of license and the said period expired in March 2011 but the defendant has not even commenced the construction and thus committed breach of the collaboration agreement. Accordingly, plaintiffs have terminated the collaboration agreement. The plaintiffs alleged that they continued to be in possession of the suit land but the defendant threatened to dispossess them therefrom and threatened to raise construction on the suit land. Plaintiffs, therefore, sought to injunct the defendant from doing so. By moving application Annexure P-1, plaintiffs also claimed temporary injunction to the same effect during pendency of the suit.

The defendant by filing written statement as well as reply Annexure P-2 resisted the suit and the application for temporary injunction and inter alia pleaded that in addition to the collaboration agreement dated 02.05.2005 Annexure P-3, Tahar Singh also agreed to sell the suit land to the defendant and delivered possession thereof to the defendant. The defendant paid Rs. 1,00,000/- vide cheque dated 05.05.2005 and balance sale consideration of Rs. 4,00,000/- was also paid when Tahar Singh executed Will dated 06.05.2005 in favour of Managing Director of the defendant-company and also delivered possession of the suit land to the defendant.

I have heard counsel for the petitioners and perused the case file.

Counsel for the petitioners contended that petitioners are in possession of the suit land and they are entitled to temporary injunction.

I have carefully considered the aforesaid contention, which cannot be accepted. The defendant has placed on record documents to depict that possession of the suit land was delivered by plaintiffs'' predecessor Tahar Singh to the defendant. Consequently, prima facie plaintiffs cannot be said to be in possession of the suit land. On the other hand, the defendant even allegedly paid sale consideration to plaintiffs'' predecessor and there are documents in support of the said plea of the defendant. Consequently, plaintiffs'' application for temporary injunction has been rightly declined because it cannot be said that they are prima facie in possession of the suit land. On the other hand, defendant is prima facie in possession of the suit land. For the reasons aforesaid, I find that plaintiff has filed to make out necessary three ingredients for grant of temporary injunction i.e. prima facie case, balance of convenience and irreparable loss and injury. Temporary injunction has, therefore, been rightly declined to the plaintiffs by the Courts below. There is no perversity, illegality or jurisdictional error in impugned orders of the Courts below so as to warrant interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is meritless and is accordingly dismissed in limine. However, nothing observed hereinbefore shall be construed to be expression of opinion on merits of the suit.