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2020 DIGILAW 335 (JHR)

Ajay Kishore Lall. v. Binod Prasad

2020-02-19

SANJAY KUMAR DWIVEDI

body2020
JUDGMENT 1. Heard Mr. Pandey Neeraj Rai, learned counsel for the petitioners and Mr. P.A.S. Pati, learned counsel for the respondent. 2. The petitioners have preferred this writ petition for quashing the order dated 20.01.2015 passed by the District Judge-III, Bokaro in Civil Miscellaneous Appeal No. 16 of 2014, whereby, the order dated 08.08.2014 passed by the learned Civil Judge, Senior Division, Bokaro in Title Suit No. 29 of 2014 was upheld and the application filed by the petitioners under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure was rejected. 3. Petitioner no.1 entered into separate agreement for sale with the respondent and six others for their respective pieces of land for consideration amount of Rs.2 Lakhs for each plot. He further submits that in the agreement for sale entered into with the respondent, the respondent agreed to sell one such plot, which was his piece of land measuring 10 7/16 decimals situated at C.S. Plot No. 1688. In order to have delivery of possession free from all encumbrances at the time of sale, petitioner no.1 had to get the land measured and demarcated with the help of local administration, which he did at his own expense. This took almost two and half years. In the meantime, a company was formed by petitioner no.1, thereafter, petitioner no.1 requested different landowners to execute the agreement, which was avoided by them and they pressed for development agreement and also provided for sale of the land, but at different and higher consideration to be paid by petitioner no.1. Thereafter, the petitioners instituted Title Suit No. 29 of 2014 for specific performance of the agreement. In the suit, the petitioners filed an application under Order XXXIX Rule 1 and 2 C.P.C. for temporary injunction, which was rejected. Aggrieved with that rejection, civil miscellaneous appeal was filed before the District Judge-III, Bokaro, which was also rejected by the impugned order. Aggrieved with that order, the petitioners have preferred this writ petition. 4. Mr. Pandey Neeraj Rai, learned counsel for the petitioners submits that the appellate court has almost decided the suit and has observed many thing on the merits of the case, which will harm the petitioners in final decision of the pending suit. He puts much emphasis on the observations of readiness and willingness made by the appellate court. 4. Mr. Pandey Neeraj Rai, learned counsel for the petitioners submits that the appellate court has almost decided the suit and has observed many thing on the merits of the case, which will harm the petitioners in final decision of the pending suit. He puts much emphasis on the observations of readiness and willingness made by the appellate court. He further submits that while deciding the merits of the case in injunction matter, the court below has committed error to exceed its jurisdiction while deciding the merits of the case by making such adverse observations on the point of readiness and willingness on the plaintiffs part. 5. Per contra, Mr. P.A.S. Pati, learned counsel for the respondent submits that the petitioners have instituted the suit after lapse of 9 months of the cause of action. He further submits that the trial court as well as the appellate court have rightly rejected the application filed by the petitioners under Order XXXIX Rule 1 and 2 C.P.C. He also submits that the petitioners have failed to perform their part of promise and in that view of the matter the trial court as well as the appellate court have rightly rejected the application of the petitioners. He further submits that there is no strong prima facie case in favour of the petitioners and in that view of the matter there is no illegality in the impugned order. To buttress his argument, he relied upon the judgment rendered by the Hon''ble Supreme Court in the case of Ambalal Sarabhai Enterprise Limited v. KS Infraspace LLP Limited & another, in Civil Appeal No. 9346 of 2019 and analogous cases, arising out of S.L.P. (Civil) No. 23194 of 2019. 6. Paragraphs 15 and 19 of the said judgment are quoted herein below : ''15. Chapter VII, Section 36 of the Specific Relief Act, 1963 (hereinafter referred to as the Act) provides for grant of preventive relief. Section 37 provides that temporary injunction in a suit shall be regulated by the Code of Civil Procedure. The grant of relief in a suit for specific performance is itself a discretionary remedy. A plaintiff seeking temporary injunction in a suit for specific performance will therefore have to establish a strong prima facie case on basis of undisputed facts. The conduct of the plaintiff will also be a very relevant consideration for purposes of injunction. The grant of relief in a suit for specific performance is itself a discretionary remedy. A plaintiff seeking temporary injunction in a suit for specific performance will therefore have to establish a strong prima facie case on basis of undisputed facts. The conduct of the plaintiff will also be a very relevant consideration for purposes of injunction. The discretion at this stage has to be exercised judiciously and not arbitrarily. 19. In a matter concerning grant of injunction, apart from the existence of a prima facie case, balance of convenience, irreparable injury, the conduct of the party seeking the equitable relief of injunction is also very essential to be considered as observed in Motilal Jain (supra) holding as follows : ''6.The first ground which the High Court took note of is the delay in filing the suit. It may be apt to bear in mind the following aspects of delay which are relevant in a case of specific performance of contract for sale of immovable property: (i) delay running beyond the period prescribed under the Limitation Act; (ii) delay in cases where though the suit is within the period of limitation, yet: (a) due to delay the third parties have acquired rights in the subject-matter of the suit; (b) in the facts and circumstances of the case, delay may give rise to plea of waiver or otherwise it will be inequitable to grant a discretionary relief.'' 7. In view of the above facts and considering the fact that the petitioners instituted the suit after 9 months of the cause of action, the trial court has rightly considered this aspect of the matter about non-performance of the agreement on the part of the petitioners. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things under complaint. The petitioners have failed to perform their part of agreement. Considering the judgment delivered by the Hon''ble Supreme Court in Ambalal Sarabhai Enterprise Limited v. KS Infraspace LLP Limited & another (supra), no relief can be extended to the petitioners. 8. Accordingly, this writ petition stands dismissed. However, the trial court will decide the suit on its own merit without prejudiced to the observations made by the appellate court.