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2016 DIGILAW 142 (CAL)

Aparajita Das v. Shipra Talukdar

2016-02-08

SOUMEN SEN

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JUDGMENT : This revisional application is directed against an order passed by the Appellate Court on July 23, 2015 affirming the order dated May 12, 2015 whereby the Trial Court passed an order of status quo in respect of nature, character and title of the suit property as on that date till the disposal of the suit. At the stage of admission of this revisional application, it appears that a dispute was raised whether the agreement on which the plaintiff rests her case was filed before the Trial Court or before the Appellate Court. The Lower Court Record (LCR) was called for. From the LCR, it appears that there is an agreement for sale date July 12, 2011. Mr. Aniruddha Chatterjee, the learned Counsel appearing on behalf of the petitioners, submits that the opposite party is not in possession of the suit property inasmuch as she has not claimed for specific performance of the agreement for sale. In absence of such prayer, the said opposite party is not entitled to get a relief in the nature of status quo. Mr. Chatterjee has relied upon three decisions namely (i) British Airways PLC Vs. Barunendra Nath Basu reported in 2002 (2) CHN 123 (ii) Universal Petro-Chemicals Limited Vs. BP PLC & Ors. reported in 2005 (2) CHN 239 and (iii) an unreported decision of this Court in the case of Anjana Gupta Vs. Hemant Kumar Pathak, to argue that the fact remains that the opposite party was not put to possession in terms of the agreement but the plaintiff has filed only a declaratory suit by way of specific performance of contract. Even the said suit is barred under the provision of Section 34 of the Specific Relief Act as the plaintiff could not get relief which was sought for by him in the suit without seeking further relief for specific performance. It is submitted that the grant of refusal of a temporary injunction is covered by three well-established principles, that is (a) whether the petitioner has made out a prima facie case (b) where the balance of convenience lies and (c) whether the petitioner would suffer irreparable loss and injury. With the first condition as sine qua non the petitioner is to prove two conditions conjunctively. Mere proof of one of the three conditions does not entitle a petitioner to an order of temporary injunction. With the first condition as sine qua non the petitioner is to prove two conditions conjunctively. Mere proof of one of the three conditions does not entitle a petitioner to an order of temporary injunction. An interim arrangement is normally made on a prima facie consideration of the matter and on broad principles without examining the matter in depth. Per contra, Mr. Ajoy Debnath, the learned Advocate appearing on behalf of the opposite party refers to paragraphs 5, 6 and 7 of the plaint and submits that the plaintiff has paid a sum of Rs.2,50,000/- (Rs. Two lacs and fifty thousand) as per the agreement of sale dated July 12, 2011 by way of earnest money to the petitioners but the petitioners failed to execute and refused to execute the deed in favour of the plaintiff. In paragraph 7 it has been categorically stated that the plaintiff on several occasion meet with the defendants and on lastly on September 18, 2011 requested to register the said deed in respect of the schedule property in her favour but the defendants refused to registrar the said sale deed in favour of the plaintiff. The plaintiff apprehends that unless a restricted order is passed, the plaintiff would be dispossessed from the property. The Trial Court on consideration on materials on record and the agreement passed an order of status quo in respect of nature, character and title of the suit property as on May 12, 2015. The Trial Court further observed that no prima facie case was made on behalf of the plaintiff to show that the plaintiff is in possession of the suit property. The Appellate Court has also noticed the observation made by the Trial Court that the plaintiff is not in possession. The question arises for consideration at the interlocutory stage was that if a party is not in possession whether an order of injunction would be passed in favour of the said party. The Court is little baffled with the nature of the relief claimed in the suit. The plaintiff never says that in terms of the agreement she has been put to possession and she is ready to remain in possession of the suit property. In such case the plaintiff would have get the benefit of Section 53A of the Transfer of Property Act, 1882 or a prayer for recovery of possession as the situation would demand. The plaintiff never says that in terms of the agreement she has been put to possession and she is ready to remain in possession of the suit property. In such case the plaintiff would have get the benefit of Section 53A of the Transfer of Property Act, 1882 or a prayer for recovery of possession as the situation would demand. The plaintiff says the he has entered into an agreement for sale but by reason of failure to execute the deed the plaintiff is suffering. This Court is unable to appreciate as to why a prayer for specific performance has not been prayed for. If the plaintiff is not in possession which again is a matter to be decided at the trial of the suit. Both the Courts have arrived at a finding that the plaintiff is unable to establish that he is in possession. In a suit for specific performance of the contract the plaintiff may be put to possession in terms of the agreement or may not be, but in each case a prayer is required to be made for executing the deed of convenience which necessarily implies delivery of possession in favour of the plaintiff on finding being arrived at by the Court. The learned Counsel appearing on behalf of the opposite party relied upon two Division Bench judgements in the case of (1) Anilabala Devi Vs. Madhabendu Narain Roy reported in 46 CWN 20 and (2) Bikash Chandra Deb Vs. Vijaya Minerals Pvt. Ltd. reported in 2005 (1) CHN 582 . In Anilabala Devi (supra) the concept of further relief was discussed in the following words:- The cases establish the proposition that “further relief” mentioned in the proviso to Section 42 of the Specific Relief Act must be “relief in relation to the legal character or right as to property to which the plaintiff is entitled to and whose title to such character or right the defendant denies or is interested to deny and that relief must also be appropriate to and necessarily consequent on the right or title asserted. On this principle where the plaintiff whose title is denied by the defendant is out of possession and the defendant is in possession, the “further relief” would be recovery of possession and a suit for declaration of title will not be maintainable unless the plaintiff prayed for possession also. On this principle where the plaintiff whose title is denied by the defendant is out of possession and the defendant is in possession, the “further relief” would be recovery of possession and a suit for declaration of title will not be maintainable unless the plaintiff prayed for possession also. If, however, the plaintiff is out of possession but the defendant is not in possession or is not in a position to deliver possession to the successful plaintiff, injunction would be the further relief. This provision has been laid down by the Judicial Committee of the Privy Council in Sunder Singh – Mallah Singh, Sanatan Dharma High School Trust Vs. Mnaging Committee, Sundar Singh -–Mallah Singh Rajput High School (2). On the observations made by the Lord Thankereton in that case it may be urged that where the plaintiff is out of possession and the defendant is in possession or is able to deliver possession to the plaintiff, “further relief” would be recovery of possession and if such relief is not claimed the suit would be a bad suit. In this case however we prefer to rest our decision on the second point we have indicated above. Even if injunction could be considered to be further relief within the meaning of the proviso to Section 42 of the Specific Relief Act, we should not have granted it to plaintiff in the exercise of our discretion, even if he had established his right to present enjoyment of the estate, as he could have prayed for recovery of possession on the principle formulated in Rathnasabapathi /Pillai Vs. Ramasami Aiyar. In Biksah Chandra Deb (supra) it was held that the Court would lean in favour of introduction of the concept of balance of convenience, but does not mean and imply that the balance would be on one side and not in favour of the other. There mush be a proper balance between the parties and the balance cannot be an one-sided affair. There is no dispute that the petitioners have received a sum of Rs.2.5 lack in terms of the agreement of sale and the said amount was not refunded to the plaintiff. The plaintiff, however, cannot have an unconditional order of injunction as ultimately if it is found that the suit is not maintainable, it could prejudice to the defendants. There is no dispute that the petitioners have received a sum of Rs.2.5 lack in terms of the agreement of sale and the said amount was not refunded to the plaintiff. The plaintiff, however, cannot have an unconditional order of injunction as ultimately if it is found that the suit is not maintainable, it could prejudice to the defendants. Under such circumstances, upon depositing a sum of Rs.15 lacs in the Court below within ten days from date by the plaintiffs, the opposite party shall not allow alienate, encumber and create any third party interest in respect of the suit property. In default, the order of status quo shall stand vacated. The Trial Court shall keep the said amount in a short term fixed deposit until disposal of the suit. This Court is informed that the suit is otherwise ready for hearing. Under such circumstances, I direct the leaned Civil Judge (Junior Division), Second Court, Asansol to frame issues in the suit by February 28, 2016. The plaintiff shall file an affidavit-in-chief within a week thereafter and shall be present for examination and cross-examination on a date to be fixed by the Trial Court in terms of this order. The Trial Court is further directed to dispose of the suit as expeditiously as possible and preferably within a period of one year from the date of commence of trial without granting adjournment to either of the parties unless it is unavoidable. With these observations, the revisional application is disposed of. No order as to costs. Office is directed to send back the Lower Court Record immediately.