S.K. Dhadwal vs Prem Singh and Another

D.V. Sehgal, J.—This revision petition is directed against the judgment dated 25th May, 1987 passed by the Learned Additional District Judge, Faridabad. He has thereby affirmed an order dated 3rd December, 1986, passed by the Learned Additional Senior Sub Judge, Faridabad by which an interim injunction was issued restraining the defendant petitioner from selling or transferring or alienating the plot in dispute. The petitioner thus being aggrieved against the two decisions of the Courts below, has filed the present revision petition.

The facts in brief are that an agreement to sell the plot in dispute was entered into between the petitioner and the plaintiff-respondent on 10th September, 1984. The consideration for sale was agreed at Rs. 1,00,500/-. Since the plot is situated in the Urban Estate Faridabad, it was necessary to obtain the permission of the Haryana Urban Development Authority defendant-respondent No. 2 before the sale could be effected. A condition was, therefore, laid down in the agreement that the petitioner shall apply for such a permission and on obtaining the same he should inform respondent No. 1 within a period of 30 days when the sale deed could be executed. It is not in dispute that the petitioner got the permission from respondent No.2 to sell the plot in dispute on 22nd October, 1984. It is the case of the petitioner that soon thereafter he addressed letter dated 26th October, 1984 to respondent No. 1 under postal certificate. This assertion is however disputed on behalf of respondent No. 1.

The instant suit for permanent injunction was filed by the respondent No. 1 on 4th July, 1986 to restrain the petitioner from selling or alienating in any other way the plot in dispute to any other person except respondent No. 1. On an application filed by him under Order 39 Rules 1 and 2 Code of Civil Procedure, the Learned trial court granted the temporary injunction restraining the petitioner from selling/transferring or alienating the plot in suit to anyone else and as already observed above, this order was affirmed by the Learned Additional District Judge, in appeal.

I have heard the Learned Counsel for the parties. The contention raised on behalf of the petitioner is that in view of the provision of section 41(h) of the Specific Relief Act, 1963 (for short ''the Act'') the present suit for injunction is not maintainable as an equally efficacious remedy by way of filing a suit for specific performance of the agreement to sell, is available. He cites in his support Satish Bahadur v. Hans Raj and Ors. AIR 1980 Punjab and Haryana 351. He has further contended that in case respondent No. 1 files a suit for specific performance today the same would be clearly barred by time as period of 3 years from the date when the sale deed in the normal course ought to have been executed in pursuance of the agreement to sell, has since expired. It is, however, not necessary to go into this second submission.

It is one of the cardinal principle of law that beside establishing three requisite ingredients i.e. the prima facie case, the balance of convenience in his favour as also the apprehension of irreparable injury which he might suffer, in case the injunction is not granted, the plaintiff is also required to satisfy the court that the suit as brought by him is properly constituted and is maintainable in law. The courts below have not examined this aspect of the matter at all. I am of the considered view that in view of provision of Section 41(h) of the Act the instant suit, suit for injunction was not maintainable.

Consequently, I allow this revision petition, set aside the judgment of the Learned Additional District Judge and the order of the Learned trial court and vacate the temporary injunction which was granted in favour of respondent No. 1.1, however, leave the parties to bear their own costs.