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Madhya Pradesh High Court · body

2017 DIGILAW 1113 (MP)

Ganpat v. Ashwani Kumar Singh

2017-10-30

SUJOY PAUL

body2017
ORDER 1. The core issue in this case is whether in absence of relief claimed for specific performance of agreement, a relief for mandatory injunction alone was entertainable. 2. Draped in brevity, the relevant facts are that the respondent No. 1/plaintiff instituted a suit for mandatory injunction against defendant not to transfer the suit land situated in Village Pipaliya Baaj Kha, Tahsil Huzur, District Bhopal on the basis of the agreement to sale dated 11.5.2007. In the said suit, the present petitioner/defendant No. 1 filed an application under Order 7 rule 11 CPC read with section 151 CPC on 15.11.2011. In this application, the petitioner contended that the suit is not properly valued. In addition, a specific objection was raised that since suit is not filed seeking specific performance of agreement as per the Specific Relief Act, 1963, suit for mandatory injunction is not tenable. The plaintiff filed his reply to the said application on 28.11.2011. The Court below after hearing both the parties rejected the said application by impugned order dated 6.1.2012. 3. Shri Ankit Saxena, learned counsel for the petitioner advanced singular contention. He contended that the point involved in this case is squarely covered by judgment of this Court, reported in AIR 1961 MP 102 (Jawahar Theatres Private Ltd. v. Smt. Kasturi Bai). He submits that there is no other judgment on this point by this Court. 4. Nobody appeared for the respondents in the present case even in the pass over round. 5. No other point is pressed by learned counsel for the petitioner. 6. I have heard the learned counsel for the parties at length and perused the record. 7. The impugned order shows that upto para 3, the Court below has recorded the stand/contentions of the parties. In para 5 alone, the Court has analysed the contentions to some extent. A simple reading of para 5 shows that the Court below has rejected the contention of the petitioner by stating that the facts of the present case are different. 8. In the case of Jawahar Theatres Private Ltd. (supra), this Court considered sections 55 and 57 of the Specific Relief Act, 1877. The said Act is hereinafter called as 'Old Act'. section 55 of the Old Act deals with mandatory injunction. 8. In the case of Jawahar Theatres Private Ltd. (supra), this Court considered sections 55 and 57 of the Specific Relief Act, 1877. The said Act is hereinafter called as 'Old Act'. section 55 of the Old Act deals with mandatory injunction. It reads as follows : “When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.” 9. The new Act namely the Specific Relief Act came into being in the year 1963. Relevant portion of section 41 reads as under : 41. Injunction when refused:- An injunction cannot be granted- (e) to prevent the breach of a contract the performance of which would not be specifically enforced; (h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. A comparative study of section 55 of old Act and clause (e) and (h) of section 41 of new Act shows that it contains almost similar legislative mandate. 10. This Court in Jawahar Theatres Private Ltd. (supra) held that unless a plaintiff brings his claim within the ambit of section 57 of the Specific Relief Act, the Court would ordinarily refuse to grant a mere negative injunction in cases where a plaintiff is in a position to claim a mandatory injunction or the specific performance of the contract. If the Court were to permit that, it might result in multiplicity of suits and also might amount to abuse of the process of the Court, if the other side were prevented from raising legal pleas, which would ordinarily available to it. It is further held that it is true that where a party may not be able to claim a specific performance of the contract of lease, or where a party is not in a position to claim a mandatory injunction, such as cases, where it is a matter of special skill or personal service, the Court might grant mere negative injunction. But in other cases, the Court should be cautious about granting mere negative injunction in cases where a plaintiff, being able to claim positive injunction, or being able to claim specific performance, avoids to do the same and wants to reserve it from some later occasion. 11. In the present case also, the plaintiff prayed for a negative injunction. The prayer of plaintiff was to restrain the defendants from interference into the suit land. The plaintiff has not filed the suit for specific performance of the agreement. In the light of the principles laid down in Jawahar Theatres Private Ltd. (supra), no suit merely claiming negative injunction is entertainable when no positive injunction is prayed for nor any prayer for specific performance of agreement is made. 12. The judgment of this Court in Jawahar Theatres Private Ltd.(supra), was considered by the Punjab and Haryana High Court in AIR 1980 P and H 351 (Satish Bahadur v. Hans Raj). The P and H High Court opined that in the present case, what is to be seen is whether the suit for permanent injunction can continue when the relief for specific performance of contract under the agreement, on the basis of which present suit for permanent injunction has been filed, has become available to the plaintiffs. The Court allowed the revision petition which was filed against the order of trial Court whereby application for dismissing the suit for permanent injunction has infructuous, was declined. 13. The said judgment of Jawahar Theatres Private Ltd. (supra), was again considered by this Court in [2011 SCC Online MP 559], (Ajay Narang v. M/s Ram Enterprizes). Menon, J. (as His Lordship then was) opined that the question as to whether such a decree could be granted without seeking specific performance of the agreement in the light of the provisions of sections 41 and 42 of the Specific Relief Act, is considered by a Bench of this Court in the case of Jawahar Theatres Private Limited (supra), and after evaluating the principle and taking note of the provisions of Specific Relief Act, 1877 as was then applicable, the law laid down is that a suit for mere negative injunction without claiming specific performance is not maintainable. It was further recorded that plaintiff has not claimed specific performance of the agreement but only claimed injunction. It was further recorded that plaintiff has not claimed specific performance of the agreement but only claimed injunction. Thus, as per the principles laid down in Jawahar Theatres Private Ltd. (supra), the suit itself is not maintainable. In that case, the question of existence of prima facie case does not arise. 14. In view of aforesaid legal position, it is clear that a suit of this nature claiming only injunction is not maintainable in absence of claiming specific performance of agreement. Thus, the order of Court below is bad in law for twin reason. Firstly, the Court below has not assigned any justifiable reason for rejecting the contention of the petitioner regarding tenability of the suit for the reasons stated above. Secondly, the Court below has failed to consider the settled legal position in view of the judgment of Jawahar Theatres Private Ltd. (supra). 15. Resultantly, the impugned order dated 6.1.2012 is set aside. The application filed by the petitioner under Order 7 rule 11 CPC is allowed. In the result, civil suit filed by the plaintiff is dismissed. The civil revision is allowed. No Cost. Ankit Saxena for applicant; Darshan Soni brief holder of Saurabh Shrivastava for respondent No. 1; Rahul Mishra, Government Advocate for respondent No.2.