Shashi Dhawan vs S.M. Khan and Another

Alok Singh, J.—Defendant-Petitioner has invoked supervisory jurisdiction of this Court, challenging the order dated 28.09.2010 passed by

learned Civil Judge (Senior Division), Panchkula, thereby rejecting the application moved by Defendant No. 1-Petitioner herein under Order 7

Rule 11 Code of Civil Procedure.

The brief facts of the present case are that Plaintiff-Respondent No. 1 has filed a suit for permanent prohibitory injunction restraining the

Defendant from alienating/disposing off the suit property to any other person except the Plaintiff and for mandatory injunction directing Defendant

No. 1 to complete the sale in favour of the Plaintiff in terms of oral agreement and token receipt dated 25.03.2010.

The Plaintiff has, inter-alia, alleged in the plaint that Defendant No. 1 has approached the Plaintiff for sale of 10 marlas single storey house and

she told the Plaintiff that she is absolute owner of the suit property and the same is free from all sorts of encumbrances; Plaintiff has accepted the

proposal of Defendant No. 1 on 25.03.2010 and all the conditions of sale were settled orally in the presence of Rajesh Sharma of Balaji Estate,

Daya Sagar Sharma and S.A. Khan and total sale consideration agreed was Rs. 1,48,50,000/-; it is agreed between the parties that sale shall be

completed by 30.05.2010; at the time of agreement, Defendant No. 1 was not having the documents of the property and it was settled that a sum

of Rs. 2 lac shall be paid as token money and Rs. 20 lac shall be paid as advance money on 29.03.2010 when Defendant No. 1 will show the

documents of ownership and formal agreement to sell will be executed. It is further averred in the plaint that Plaintiff has paid Rs. two lakhs on

25.03.2010 and receipt was duly executed specifically stating therein that Rs. twenty lakhs shall be paid on or before 29.03.2010 at the time of

execution of agreement to sell and rest of the sale consideration in full shall be paid on or before 30.05.2010, last date for the execution of sale

deed. Plaintiff has further contended that he was ready with Rs. 20 lac as per the agreement with Defendant No. 1 and was always ready and

willing to perform his part of the agreement, however, meanwhile, Plaintiff came to know that Defendant No. 1 is not the sole owner, rather, Mr.

Om Parkash Sharma is the another co-owner. Plaintiff has also issued notice to Defendant No. 1 to perform his part of the contract, however,

Defendant No. 1 threatened to create third party interest,hence, Plaintiff filed suit for permanent prohibitory injunction, as well as mandatory

injunction.

Defendant No. 1 has moved an application under Order 7 Rule 11 CPC saying therein that oral agreement to execute the agreement is nothing

and cannot be enforced. It has been averred in the application that suit simplicitor for prohibitory injunction is barred by Section 41(h) of the

Specific Relief Act, since Plaintiff has failed to file suit for specific performance of the contract. Learned Trial Court vide the impugned order,

rejected the application moved by Defendant No. 1, hence, defence No. 1 has approached this Court by invoking jurisdiction of this Court under

Article 227 of the Constitution of India.

Mr. A.S. Chandhiok, Senior Advocate, assisted by Ms. Vibha Dhawan, Advocate argued that since Plaintiff himself has admitted in the reply to

the application under Order 7 Rule 11 CPC that he has not filed suit for specific performance, hence in view of Section 41(h) of the Specific Relief

Act, suit for permanent prohibitory injunction was not maintainable. It has further been argued that in view of the dictum of the Apex Court in the

matter of Speech and Software Technologies (India) Pvt. Ltd. Vs. Neos Interactive Ltd., , agreement to execute agreement is not enforceable,

hence, in any case, suit for mandatory injunction is not maintainable. It has further been argued that if agreement to execute agreement cannot be

enforced hence, in any case, suit is not maintainable. It is further contended that the absence of another co-owner - Sh. Om Parkash Sharma, relief

for specific performance cannot be granted, hence, plaint is liable to be rejected.

Having perused the entire plaint, I find that Plaintiff has filed a suit for permanent prohibitory injunction restraining the Defendant not to create

third party interest and mandatory injunction commanding the Defendant to execute the sale deed in favour of the Plaintiff. Plaintiff has successfully

pleaded cause of action in the plaint.

Now question comes as to whether relief for specific performance can be granted in the shape of mandatory injunction. In the opinion of this

Court, real intention of the relief sought is to be seen. If courts find that in fact Plaintiff is seeking specific performance of the contract in the garb of

mandatory injunction, Court can very well ask the Plaintiff to pay the Court fee on the plea of specific performance, however, merely because

specific performance is sought in the light of the mandatory injunction does not make the plaint liable to be rejected. Plaint can be rejected only

when on the calling of the Court, Plaintiff failed to pay court fee on the relief for specific performance of the contract.

Now, the next question comes as to whether suit is maintainable against Defendant No. 1 without impleading Om Parkash Sharma. Admittedly,

Plaintiff is not claiming that he has entered into agreement with Om Parkash Sharma. If the Plaintiff is able to establish the legal and enforceable

agreement and cash receipt between the Plaintiff and Defendant No. 1, decree for specific performance can be granted in accordance with law in

favour of the Plaintiff qua the share of Defendant No. 1. Merely because another co-owner is not impleaded would amount to not claiming the

relief qua the share of the said co-owner. Defendant No. 1 is not able to deny the cash receipt dated 25.03.2010 containing mode of payment and

last date for execution of sale deed. In the humble opinion of this Court, all the arguments advanced by the learned Senior Advocate can be dealt

with by the learned Trial Court after taking written statement on record or after framing issue about the maintainability of the suit and non-payment

of sufficient court fee. In the opinion of this Court at this stage, Defendant could not prove that suit is apparently barred by any law. To reject the

plaint at the initial stage only contents of the plaint has to be seen. In the present case, plaint discloses cause of action and relief sought. I do not

find that at this stage, plaint should be rejected.

Dismissed.