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2020 DIGILAW 683 (HP)

Prem Lal v. Nand Lal

2020-10-06

SANDEEP SHARMA

body2020
JUDGMENT Sandeep Sharma, J. - Being aggrieved and dissatisfied with the judgment dated 28.2.2019 passed by learned Additional District Judge, Sundernagar, District Mandi, Himachal Pradesh in Civil .Misc. Appeal No. 77/19, setting aside order dated 22.11.2019 passed in CMA No. 59-VI/2017 in Civil Suit No. 52-I/2017, whereby learned trial Court, while allowing application under Order XXXIX, rules 1 and 2 CPC, having been filed by the petitioner/plaintiff (hereinafter, 'plaintiff') restrained the respondent/defendant (hereinafter, 'defendant') from raising construction and changing nature of suit land till disposal of the suit. 2. Precisely, the facts of the case, as emerge from the record are that the plaintiff filed a suit for permanent prohibitory and mandatory injunction against the defendant with regard to suit land averring therein that the suit land comprising of Khewat No. 176, Khatauni No. 193, Khasra No. 842, measuring 00-07-10 Bigha, situate in Muhal Bhour, Tehsil Sundernagar, District Mandi, is recorded as joint between the plaintiff, defendant and other cosharers as per Jamabandi for the years 2012-13 and has not been partitioned between the parties as yet. Plaintiff averred that a portion of suit land abuts National Highway No. 21 but defendant has started raising construction on best and valuable portion of suit land. Plaintiff has claimed that he requested the defendant not to raise construction on the suit land, but in vain. Besides above, alongwith aforesaid suit, plaintiff also filed an application under Order XXXIX, rules 1 and 2 CPC, praying therein to restrain the defendant from raising construction over the suit land till the time, same is partitioned in accordance with law. With a view to have the discretionary relief of injunction during the pendency of the main suit, plaintiff specifically averred in the application that prima facie case and balance of convenience is also in his favour. Plaintiff also averred that he would suffer irreparable loss and injury, in case interim injunction is not granted in his favour. 3. Defendant, while filing written statement as well as reply to the stay application, pleaded that he had purchased 00-06-00 Bigha of suit land adjoining to National Highway from his father and in the year 1992, he had constructed two shops and two rooms on the ground floor and in the first floor, he had built four rooms with the consent of his father, Nanku. It is further averred in the written statement that plaintiff and others had become co-owner only after the death of Nanku, around 17 years back and now National Highways Authority of India has acquired half portion of both the shops for widening of the road as a consequence of which, half portion of shops and the house is to be demolished, hence, he is raising construction on the old house extending his house 20 feet backward on the land, which was already in his possession, as he has no house to live in. 4. Learned trial Court, vide order dated 22.11.2019 allowed the application filed by the plaintiff under Order XXXIX, rules 1 and 2 CPC, thereby restraining the defendant from raising construction or changing nature of suit land till disposal of the suit. 5. Being aggrieved and dissatisfied with the aforesaid order dated 22.11.2019 passed by trial court, defendant preferred an appeal under Order XLIII, rule 1(r) CPC, before learned Additional District Judge, Sundernagar, District Mandi, who, vide judgment dated 28.12.2019, set aside the order passed by learned court below, as such, plaintiff has approached this Court in the instant proceedings, with a prayer to set aside the judgment passed by learned Additional District Judge. 6. I have heard learned counsel for the parties and perused the material available on record. 7. Factors and principles, which are to be borne in mind by a court, while considering application seeking injunction order, have been discussed in depth by this Court, while rendering judgment in case Suresh Kumar vs. Pooja, CMPMO No. 331 of 2020, decided on 9.9.2020, relevant portion, whereof is reproduced herein below: "3. Before adverting to the factual matrix of the case vis- -vis prayer made in the petition at hand, this Court deems it proper to delve upon the factors and principles to be borne in mind by the court, while considering application seeking injunction order. It is well settled that before grant of injunction, court must be satisfied that the party praying for relief has a prima facie case and balance of convenience is in its favour. Besides above, while granting injunction, if any, court is also required to consider that whether the refusal to grant injunction would cause irreparable loss to such a party. It is well settled that before grant of injunction, court must be satisfied that the party praying for relief has a prima facie case and balance of convenience is in its favour. Besides above, while granting injunction, if any, court is also required to consider that whether the refusal to grant injunction would cause irreparable loss to such a party. Apart from aforesaid well established parameters/ingredients, conduct of the party seeking injunction is also of utmost importance, as has been held by Hon'ble Apex Court in case M/S Gujarat Bottling Co.Ltd. & Ors. v. The Coca Cola Co. & Ors.,1995 AIR 2372. In case a party seeking injunction fails to make out any of the three ingredients, it would not be entitled to injunction. Phrases, "prima facie case", "balance of convenience" and "irreparable loss", have been beautifully interpreted/defined by Hon'ble Apex Court in case Mahadeo Savlaram Shelke v. The Puna Municpal Corpn., (1995) 2 JT 504 (SC)relying upon its earlier judgment in Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719 has held as under: "...the phrases "prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men's ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice. The court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. The existence of prima fade right and infraction of the enjoyment of him property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The court further has to satisfy that non-interference by the court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. The court further has to satisfy that non-interference by the court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury but means only that the Injury must be a material one, namely one that cannot be adequately compensated by way of damages. The balance of convenience must be in favour of granting injunction. The court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. The court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."" 8. In the aforesaid backdrop, as well as law discussed herein above, this Court would now proceed to decide the controversy at hand. Having perused the material available on record and heard learned counsel for the parties, this Court finds no illegality or perversity in the findings recorded by learned Additional District Judge, while reversing the restraint order passed by learned court below, especially when it stands duly established that there are constructions on scattered portions of land in question and defendant is raising construction by extending already raised construction on the backside of land, which is already in his possession. Though, in the case at hand, pleadings as well as documents adduced on record by respective parties indicate that nature of suit land is still joint, becuase, admittedly, till date no partition has taken place inter se parties in accordance with law but the plaintiff has not been able to dispute that his predecessor-in-interest, Nanku, during his life time sold 00-06-00 Bigha out of suit land, adjoining to National highway to the defendant and delivered possession to him, whereafter, defendant raised two story building on the spot. Plea of the plaintiff that the defendant has raised construction on the suit land, does not appear to be correct, especially in view of stand taken by the defendant in his written statement and reply to the stay application, wherein he has stated that his father, Nanku, had sold 00-06-00 Bigha out of suit land adjoining to National highway to him, whereafter he raised two storied building on the spot during his lifetime. As per defendant, he constructed shops on ground floor and two rooms opposite the shops and four room in the upper story. His father, late Nanku, who on account of sale in favour of his son i.e. defendant had become co-owner, never raised any objection with regard to construction raised by defendant on a portion of land sold to him by his father. As per pleadings adduced on record by defendant, after death of his father, Nanku, land was inherited by his other brothers, sisters and mother. Prem Lal i.e. plaintiff is one of the brothers of the defendant. Defendant has averred in the pleadings that National Highways Authority of India has acquired his building adjoining to NH and portion of it is demolished, as a consequence of which, he is raising new construction by extending already constructed building on the land which is already in his possession. Record reveals that aforesaid pleadings adduced on record by defendant have not been refuted by the plaintiff by way of replication/rejoinder. Copy of Jamabandi for the years 2012-13 on record supports the case of the defendant. Suit land is 00-17-18 Bigha and in the Jamabandi, it has been shown that it has total 1611 shares, out of which Mohan Lal, Bansi Lal, Kanhaiya Lal, Prem Lal, Kamla Devi, Tara Devi, Seema Devi and Smt. Kunta Devi, i.e. sons, daughters and widow of Nanku have 952 shares. It further stands recorded in the Jamabandi as referred to above that Nand Lal son of late Nanku has remaining 695 shares and all of them are owners-in-possession. 9. From the careful perusal of aforesaid Jamabandi, factum with regard to separate possession of defendant in the suit land, is duly established. It further stands recorded in the Jamabandi as referred to above that Nand Lal son of late Nanku has remaining 695 shares and all of them are owners-in-possession. 9. From the careful perusal of aforesaid Jamabandi, factum with regard to separate possession of defendant in the suit land, is duly established. Similarly, this Court finds that pursuant to sale made by Nanku in favour of defendant, he came to be described as owner-in-possession qua 695 shares, which itself suggests that the suit land though might not have been legally partitioned but the same stands otherwise duly partitioned inter se parties. In case, there had been no sale by Nanku, probably there was no requirement of division of shares, as has been shown in the Jamabandi. In that eventuality, all 1611 shares would have been owned by all the sons, daughters and widow of the deceased Nanku in equal shares. Careful perusal of Jamabandi clearly reveals that the land in question stands divided in two parts i.e. 952 shares have been shown in the share of the sons, daughters and widow of Nanku, except Nand Lal, i.e. defendant, in equal shares whereas, share of Nand Lal has been separated and has been shown /reflected accordingly, in the Jamabandi. All these facts, as have been taken note herein above, prima facie show that Nand Lal, defendant, has is own defined exclusive share in the suit land and he was one of the cosharers with his father Nanku when he was alive. As has been taken note herein above, there is no specific denial to the averments made by the defendant that he had purchased 00-06-00 Bigha out of suit land, from his father but otherwise also, said fact stands duly established on account of entries recorded in the Jamabandi, as has been taken note herein above. Plaintiff alongwith his brothers and sister except the defendant stepped into the shoes of his father Nanku, after his death, whereas, defendant had already become one of the cosharers with his father, Nanku after having purchased 00-06- 00 Bigha out of suit land from his father, meaning thereby that the plaintiff as well as other sisters and brothers, save and except defendant, were stranger to the suit land till the time, they inherited the same from the share of their late father, after his death. Similarly, this Court finds that there is no rebuttal, if any, to the claim of the defendant that he raised construction on the land abutting to roadside during the life time of his father, Nanku, who never raised objection to the construction by defendant, rather, he consented for such construction activity. It is also not in dispute that the defendant having raised construction during the life time of Nanku, started enjoying the same during the life time of Nanku. It is also not in dispute that NHAI issued notice to the defendant to demolish the existing structure for widening of the road and as such, defendant had no option but to raise construction on the remaining part of vacant land, which is in his possession by virtue of sale deed. Though, in the case at hand, plaintiff has claimed that since the suit land is joint inter se parties, defendant has no right to raise construction until its partition but, pleadings adduced on record clearly suggest that the construction stood already raised on the portion of suit land abutting National highway and at present defendant on account of demolition order issued by NHAI has proposed to raise construction towards backside on the land which is in his possession. 10. Leaving everything aside, once Nanku had permitted cosharer i.e. defendant to raise construction on suit land, suit land cannot be considered to be joint, having not been partitioned, because otherwise raising of permanent construction amounts to effecting compulsory partition. This court finds force in the submission made by learned counsel appearing for the defendant that character of suit land ceased to be joint after construction on the portion of the same by defendant, especially when it stands admitted that Nanku (cosharer) never raised objection to the construction on the so called 'best portion of suit land'. Since plaintiff alongwith other legal heirs of Nanku stepped into shoes of Nanku, after his death, they cannot lay any independent claim without being influenced by acts of his predecessor-in-interest Nanku, who during his life time never raised objection with regard to construction raised by the defendant with regard to on the joint land. Since plaintiff alongwith other legal heirs of Nanku stepped into shoes of Nanku, after his death, they cannot lay any independent claim without being influenced by acts of his predecessor-in-interest Nanku, who during his life time never raised objection with regard to construction raised by the defendant with regard to on the joint land. Moreover, Nanku, after having effected sale in favour of the defendant, never considered the suit land as joint and as such, suit land cannot be considered to be joint for the purpose of consideration of plea raised by the plaintiff as he has merely stepped into the shoes of Nanku. Mere pleading that the suit land is joint inter se parties and not partitioned hence no cosharer could raise construction on joint land, is of no consequence in the facts and circumstances of the case, wherein it stands duly established that the defendant after having purchased portion of suit land from his father, raised construction during his life time. Plaintiff could have filed suit for partition and separation of his share while claiming consequential relief of injunction and plead that the defendant was raising construction on suit land not in his possession or exceeding his share and in case such construction is permitted, it will amount to his ouster but, interestingly, suit at hand has not been filed on such premise, rather, plaintiff concealed material facts from the court, while filing the suit, especially with regard to sale made by his father in favour of the defendant in the year 1992, without there being any partition of suit land. Moreover, raising of construction by the defendant has been nowhere denied by the plaintiff in his pleadings and construction otherwise prima facie stands proved from the copy of notice received by the defendant from NHAI for pulling down the structure. Moreover, it is not the case of the plaintiff that no structure was acquired by NHAI and no structure is being demolished. As has been observed above, defendant has categorically stated in his written statement as well as reply to stay application, with regard to purchase of land by him from his father and thereafter raising of construction but such pleadings have been neither refuted nor admitted. As has been observed above, defendant has categorically stated in his written statement as well as reply to stay application, with regard to purchase of land by him from his father and thereafter raising of construction but such pleadings have been neither refuted nor admitted. Though, plaintiff while filing suit has claimed that the defendant is raising construction on valuable portion of suit land towards roadside but, such plea is factually incorrect because the material available on record clearly reveals that the construction on the roadside was raised by the defendant somewhere in the year 1992, during the life time of his father and now the same is being pulled down by the NHAI for widening of road. In case Kalawati vs. Netar Singh and others, (2016) AIR Himachal Pradesh 85 , this Court has categorically held that in case a party does not specifically deny the averments made by an opposite party in written statement/reply, averments so made in the plaint are deemed to be correct and court must give due weightage to the same. In the case at hand, as has been described herein above, averments made by the defendant with regard to purchase of portion of suit land and thereafter construction on the same have not been specifically denied by the plaintiff, as such, said assertions are presumed to be correct. 11. Grant/Refusal of relief of temporary injunction is purely an equitable relief and while refusing/granting same, court has to weigh several factors before coming to a definite conclusion. Though there are three basic ingredients, which are to be taken into consideration by a court while considering prayer, if any, for interim relief i.e. prima facie case, balance of convenience and irreparable loss and injury. All these factors are required to be comparatively examined by the court, but over and above, all these factors, conduct of a party seeking discretionary relief is of utmost importance. In the case at hand, material adduced on record by respective parties compels this Court to conclude that the plaintiff failed to approach the court with clean hands, as such, inference can be drawn that he, with a view to have interim order in his favour, suppressed material facts purposely and intentionally. In the case at hand, material adduced on record by respective parties compels this Court to conclude that the plaintiff failed to approach the court with clean hands, as such, inference can be drawn that he, with a view to have interim order in his favour, suppressed material facts purposely and intentionally. In the case at hand, no irreparable loss and injury, which cannot be compensated in monetary terms, would be caused to the plaintiff in case injunction is not granted to him, rather, irreparable loss and injury would be caused to the defendant, in case interim injunction, as has been prayed for, is allowed. 12. Hon'ble Apex Court in Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Ltd., 2020 5 SCC 410 has held that 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. Hon'ble Apex Court has held as under: 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 primafacie 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. 16. The cardinal principles for grant of temporary injunction were considered in Dalpat Kumar vs. Prahlad Singh, (1992) 1 SCC 719 , observing as follows : "5 Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that noninterference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. The Court further has to satisfy that noninterference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit." 17. The negotiations between the plaintiff and the defendant is reflected in approximately 17 emails exchanged between them commencing from December 2017 to 31.03.2018. The file size of the attachment to the mails has varied from 48- 5052485756 KBs indicating suggestions and corrections from time to time. The WhatsApp messages which are virtual verbal communications are matters of evidence with regard to their meaning and its contents to be proved during trial by evidenceinchief and cross examination. The emails and WhatsApp messages will have to be read and understood cumulatively to decipher whether there was a concluded contract or not. The use of the words 'final draft' in the email dated 30.03.2018 cannot be determinative by itself. The email dated 26.02.2018 sent by the defendant at 11:46 AM had also used the same phraseology. The plaintiff was well aware from the very inception that the defendant was negotiating for sale of the lands simultaneously with two others. The plaintiff was further aware on 30.03.2018 itself that the deal with it had virtually fallen through as informed to the escrow agent. The plaintiff was well aware from the very inception that the defendant was negotiating for sale of the lands simultaneously with two others. The plaintiff was further aware on 30.03.2018 itself that the deal with it had virtually fallen through as informed to the escrow agent. The fact that a draft MoU christened as 'finalfor discussion' was sent the same day cannot lead to the inference in isolation, of a concluded contract. There is no evidence at this stage that the acceptance was communicated to the defendant before the latter entered into a deal with defendant no.2 on 30.03.2018 and executed a registered agreement for sale on 31.03.2018. Defendant no.2 paid Rs.17.69 crores and Rs.2.20 crores towards the income tax dues of the defendant the same day, as part of the consideration amount. It is only thereafter the plaintiff purports to have communicated its acceptance to the defendant on 31.03.2018 at 01.13 PM. The prolonged negotiations between the parties reflect that matters were still at the 'embryo stage' as observed in Agriculture Produce Market Committee, Gondal and ors. vs. Girdharbhai Ramjibhai Chhaniyara and ors., (1997) 5 SCC 468 . The plaintiff at this stage has failed to establish that there was a mutuality between the parties much less that they were ad idem. 18. The pleadings in the suit acknowledge the awareness of the plaintiff of the ongoing negotiations with defendant no.2. The advance of Rs.2.16 crores was refunded to the plaintiff in the evening on 31.03.2018 by RTGS. No effort was made by the plaintiff to again remit the sum by RTGS immediately or the next day. Only a public notice was published on 03.04.2018 refuted by the defendant on 04.03.2018. The suit was then filed seven months later on 01.10.2018. The explanation that the plaintiff waited hopefully for a solution outside litigation as a prudent businessman before finally instituting the suit is too lame an excuse to merit any consideration. 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. 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 subjectmatter 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." 20. The defendant no.2, in addition to the dues of the Income Tax department as aforesaid, made further payments to the defendant of Rs.25,44,57,769/ by 16.01.2019 aggregating to a total payment of Rs.45,84,71,869/. The defendants had also proceeded to utilize a sum of Rs.36.20 crores also and had therefore materially altered their position evidently by the inaction of the plaintiff to institute the suit in time and having allowed third party rights to accrue by making substantial investments. In Madamsetty (supra) it was observed : "12.....It is not possible or desirable to lay down the circumstances under which a court can exercise its discretion against the plaintiff. But they must be such that the representation by conduct or neglect of the plaintiff is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief." Similar view has been expressed in Mandali Ranganna (supra). 21. We are therefore of the considered opinion that in the facts and circumstances of the present case, and the nature of the materials placed before us at this stage, whether there existed a concluded contract between the parties or not, is itself a matter for trial to be decided on basis of the evidence that may be led. If the plaintiff contended a concluded contract and/or an oral contract by inference, leaving an executed document as a mere formality, the onus lay on the plaintiff to demonstrate that the parties were ad idem having discharged their obligations as observed in Brij Mohan (supra). The plaintiff failed to do show the same on admitted facts. If the plaintiff contended a concluded contract and/or an oral contract by inference, leaving an executed document as a mere formality, the onus lay on the plaintiff to demonstrate that the parties were ad idem having discharged their obligations as observed in Brij Mohan (supra). The plaintiff failed to do show the same on admitted facts. The draft MoU dated 30.03.2018 in Clause C contemplated payment of the income tax dues of Rs.18.64 crores as part of the consideration amount only whereafter the agreement was to be signed relating back to the date 29.03.2008. Had this amount been already paid or remitted by the plaintiff, entirely different considerations would have arisen with regard to the requirement for execution of a written agreement remaining a mere formality. Needless to state the balance of convenience is in favour of the defendants on account of the intervening developments, without furthermore, interalia by reason of the plaintiff having waited for seven months to institute the suit. The question of irreparable harm to a party complaining of a breach of contract does not arise if other remedies are available to the party complaining of the breach. The High Court has itself observed that from the negotiations between the parties that "some rough weather was being reflected between the plaintiff and the defendant .........". The Special Civil Judge failed to address the issue of delay. The High Court noticed the arguments of the defendants with regard to delay in the institution of the suit but failed to deal with it. 22. In M.P. Mathur vs. DTC, (2006) 13 SCC 706 , this Court observed : "14. The present suit is based on equity In the present case, the plaintiffs have sought a remedy which is discretionary. They have instituted the suit under Section 34 of the 1963 Act. The discretion which the court has to exercise is a judicial discretion. That discretion has to be exercised on well settled principles. Therefore, the court has to consider the nature of obligation in respect of which performance is sought, circumstances under which the decision came to be made, the conduct of the parties and the effect of the court granting the decree. In such cases, the court has to look at the contract. The court has to ascertain whether there exists an element of mutuality in the contract. In such cases, the court has to look at the contract. The court has to ascertain whether there exists an element of mutuality in the contract. If there is absence of mutuality the court will not exercise discretion in favour of the plaintiffs. Even if, want of mutuality is regarded as discretionary and not as an absolute bar to specific performance, the court has to consider the entire conduct of the parties in relation to the subject matter and in case of any disqualifying circumstances the court will not grant the relief prayed for (Snell's Equity, 31st Edn., p. 366) ." 23. Wander Ltd. (supra) prescribes a rule of prudence only. Much will depend on the facts of a case. It fell for consideration again in Gujarat Bottling Co. Ltd. vs. Coca Cola Co., (1995) 5 SCC 545 , observing as follows : "47 .Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. 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 complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest ." 13. Consequently, in view of detailed discussion made herein above, this court sees no illegality or perversity in the judgment passed by learned court below, which otherwise appears to be based on proper appreciation of the facts and law, which is accordingly upheld. Petition is dismissed. Pending applications, if any, stand disposed of. Interim directions, if any, are vacated. Record of court below be sent back forthwith. Needless to say, observations made herein above, shall not be deemed to be a reflection on the merits of the case, which shall be decided by learned court below on its own merit on the basis of evidence to be led by respective parties.