JUDGMENT
1. This second appeal under Section 100 of the Civil Procedure Code is directed against the Judgment and decree dated 13-10-1988 passed in AS No.25 of 1984 on the file of the Subordinate Judge, Peddapuram, confirming the judgment and decree dated 13-7-1984 passed in OS No.130 of 1982 on the file of the District Munsif, Prathipadu in East Godavari District.
2. The appellants herein are the
defendants and the respondent herein is the plaintiff in the said suit OS No.130 of 1982. The respondent-plaintiff filed the said suit for granting permanent injunction restraining the appellants-defendants from interfering with his possession and enjoyment of the suit property. His case is that the defendants who are interrelated and belonged to one family are the owners of the suit property consisting of Ac.6.35 cents of dry land in survey number 10 and patta number 247 of Vommangi village, that they agreed to sell the same to the plaintiff at the rate of Rs. 1,700/- per acre and executed an agreement of sale dated 7-8-1977 and in part performance of the said agreement of sale the defendants delivered the suit property to the plaintiff. It was agreed that the balance
of sale consideration should be arrived at to the extent of land after measurement. Subsequently, the plaintiff got measured the suit land and it is Ac 6.35 cents only. When the defendants were postponing to execute a registered sale-deed after receiving the sale consideration, the plaintiff got issued notice dated 4-6-1978 calling upon the defendants to receive balance sale consideration of Rs.9,295 and to execute the registered sale-deed. The defendants though received the said notice failed to comply with the same. It is also pleaded that the defendants received the balance of sale consideration of Rs.9,295/- through the elders on 10-12-1978. The plaintiff is in uninterrupted possession and enjoyment of the suit land from the date of agreement and paid the same by paying taxes. The defendants made attempts to enter into the suit land on 21-8-1981 for the first time and the plaintiff resisted their illegal acts. Hence the plaintiff filed the said suit for injunction simpliciter. Resisting the claim of the plaintiff, the defendants filed their written statement contending that the agreement of sale dated 7-8-1977 was not acted upon by the plaintiff as he failed to pay the balance of sale consideration and he was not ready and willing to perform his part of the contract, that the plaintiff issued the registered notice dated 4-6-1978 just a day prior to the date fixed to get the sale deed registered after payment of balance of sale consideration and that the plaintiff did not persue the matter nor informed these defendants as to when they should attend the Registrar’s Office for performing their part of the contract. Hence, in view of the conduct of the plaintiff, the defendants re-entered into the possession of the suit property in the later part of 1978 and that they have been in possession and enjoyment of the suit land and the land never measured by the plaintiff and that the extent of the suit land was Ac.8.31 cents. The allegation that the extent of suit land was Ac.6.35 cents is incorrect. After receipt of the notice, the defendants raised a dispute before the elders and the defendants offered to pay back the advance amount, but, the plaintiff
refused to take back the amount, and the plaintiff abandoned the contract. Hcncc, the defendants were advised by the elders to continue in possession of the suit land and as such they did not issue any reply to the plaintiff and the plaintiff never questioned the possession of the defendants when they re-entered into the suit land and the plaintiff’s claim for specific performance of the agreement of safe is barred by time and that the plaintiff never offered balance of sale consideration as alleged.Hence, the plaintiff is not entitled for the permanent injunction as prayed for.
3. The trial Court settled the following issues for trial:
(i) Whether the plaintiff is entitled for the injunction prayed for?
(ii) To what relief?
On behalf of the plaintiff, PWs.l to 3 were examined and Exs.Al to A9 were marked. The plaintiff got himself examined PW1. On behalf of the defendants DWs.l and 2 were examined and Exs.Bl to B6 were marked. Exs.Cl and C2 were also marked from the Court record. The second defendant got himself examined as DW2. On a consideration of the oral and documentary evidence on record, the trial Court recorded the following findings:
(i) In part performance of the agreement of sale, the plaintiff was put into possession of the suit property and he continued to be in possession of the same till the date of filing of the suit;
(ii) The plaintiff has paid Rs. 1,5007- as advance to the defendants under the agreement of sale and he did not pay the balance of sale consideration to the defendant under suit agreement;
The trial Court recorded its further findings thus:
“…….The time for specific performance
Ex.Al runs from the date of Exs.A7 and
AX the postal acknowledgment. The plaintiff has filed this suit on 26-8-1981 beyond three years of Exs.A? and A8 and there can be no doubt that the relief of specific performance by either of the parties of Ex.Al agreement is baned by limitation. The intention of the plaintiff filing this suit for permanent injunction is evident and it is only to circumvent the procedure by getting over the limitation for specific performance and by avoiding payment of Court fees. The relief of permanent injunction is equitable relief One who seeks equity must do equity. Without payment of balance of consideration to the defendants, I am of the opinion that the plaintiff would not be entitled to equitable relief of permanent injunction. In the circumstances, I am of the further opinion that the plaintiff would be entitled to the equitable relief of permanent injunction only on deposit of balance of the sale consideration of Rs.9,295/- into Court.”
While recording these findings, the trial Court granted the following relief to the plaintiff:
“In the result, the suit is decreed conditionally granting permanent injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiff in respect of the plaint schedule land only on condition of the plaintiff depositing the sum of Rs.9,295/- into Court within two months from today and in default of making deposit of the said amount into Court within the stipulated date, the suit shall stand dismissed.”
Each party was also directed to bear their own costs. Aggrieved of that Judgment and decree of the trial Court, the defendants preferred the appeal in A.S.No.25 of 1984 on the file of the Subordinate Judge, Pcddapuram. The learned Subordinate Judge i.e., tire first appellate Court set out the point for consideration in the appeal as “Whether there are grounds to allow the appeal?”. On a review of the evidence on record, the learned Subordinate
Judge confirmed the above said findings of the trial Court and dismissed the appeal. Challenging the said Judgment and decree of the first appellate Court, the defendants have come up with this second appeal.
4. Heard,the learned Counsel on either side. The learned Counsel for the appellants-defendants raised the following substantial questions of law:
(i) Whether the plaintiff suit filed for injunction simpliciter without seeking the relief for specific performance of the agreement of sale is maintainable?
(ii) Whether both the Courts below having held that the plaintiff foiled to pay the balance of sale consideration under the agreement of sale, are right in granting the equitable relief of permanent injunction in favour of the plaintiff?
(iii) Whether the relief of permanent injunction can be granted in favour of a person who is not prepared to perform his part of the contract and to obtain sale-deed in pursuance of the said contract of sale?
(iv) Whether the Courts below are right in granting the relief of injunction having found that the plaintiff plea with regard to the payment of the balance of sale consideration of Rs.9,295/- is false?
(v) Whether the vendee can file a suit for mere injunction when he has got another equally efficacious remedy under Section 41 (a) of the Specific Relief Act in filing the suit for specific performance of the agreement of sale?
The learned Counsel for the appellants further contends that on the basis of the finding recorded by the Courts below, the
relief granted to the plaintiff is perverse and contrary to the settled principles of law.
5. The learned Counsel for the respondent plaintiff, on the other hand,
submitted his arguments in support of the impugned Judgment. He submits that a suit for permanent injunction is maintainable without seeking the relief of specific performance of contract. He also relied on the decision of the Bombay High Court in Laxman Pandu Khadke v. Pandharinath Purustshottom Rane, . He further contends that even if the suit for specific performance is barred, the transferee can seek permanent injunction against the transferor under Section 53-A of Transfer of Property Act as he had been put in possession of the suit property in part performance of the agreement of sale. He further contends that the defendants also set up the plea that they re-entered into possession of the suit property in later part of 1978 and that plea was held to be false by both the Courts below. He also submits that the plaintiff was ready and willing to perform his part of the contract and issued notice dated 4-6-1978 to the defendants. They are concurrent findings of fact by both the Courts below and it is not open to interfere by this Court in second appeal. He further contends that the plaintiffs suit is also maintainable under Section 6 of the Specific Relief Act.
6. On an earnest consideration of the facts and circumstances in this case, even though there are concurrent findings of fact by both the Court below, I am satisfied that there is much force in the contentions raised by the learned Counsel for the appellants-defendants for interference by mis Court. Admittedly, the-respondent-plaintiff filed the suit for permanent injunction restraining the appellants-defendants with respect to the suit land on the ground that he has been put in possession of the same in pursuance of the agreement of sale and as such it is lawful and, therefore, he is entitled for injunction and that he should not be distrubed and he should not be dispossessed thereof except under due process of law. It is significant to note that he filed the suit for injunction simpliciter. He did not choose to seek the relief of specific performance of the agreement of sale under
which he is claiming possession of the suit land. The defendants in their written statement as well as the second defendant in his evidence as DW1 have categorically admitted that the suit property was delivered to the plaintiff as part performance of the agreement of sale. Thus, the cause of action for the plaintiffs suit for permanent injunction is founded on the basis of possession under the suit agreement of sale. Therefore, the plaintiff is defending his possession, though as plaintiff under Section 53-A of Transfer of Property Act. Thus, the suit itself is based upon the provisions of Section 53-A of the Transfer of Property Act. For the sake of convenience, I quote the Section 53-A of the Transfer of Property Act which reads as follows:
“53-A. Part Performance :–Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty:
and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract,
and the transferee has performed or is willing to perform his part of the contract,
then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claim under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly by the terms of the contract:
Provided that nothing in this section shall effect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.”
The necessary conditions for the application of Section 53-A of Transfer of Property Act are:
(i) There is a contract to transfer immovable property for consideration;
(ii) The contract is signed by or on behalf of transferor;
(iii)The terms can be ascertained with reasonable certainty from the document;
(iv) The transferee is put in possession or if he is already in possession, continues in possession;
(v) The transferee has done some act in furtherance of the contract; and
(vi) The transferee has performed or is willing to perform his part of the
contract.
If the afore-said conditions are fulfilled, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of that property. As has been pointed out by Subba Rao, C.J. (as he men was) in Achayya v. Venkata Sitbba Rao, 1956 AWR 830 = AIR 1957 AP 854, the right conveyed under Section 53-A of Transfer of Property Act can be relied upon only as a shield and not as a sword but the protection is available to the transferee both as a plaintiff and as a defendant so long as he uses it as a shield. Further for safe-guarding the possession of the transferee under this provision, the transferee should have performed or is willing to perform his part of the contract. It is only then the transferee is entitled to defend his possession of the property which came into his possession under the agreement of sale. In the instant case, it is no doubt true that there is a written agreement of sale between the parties and the plaintiff was also put in possession of
the suit property in part performance of that agreement of sale. The plaintiff pleaded in the plaint that he paid the balance of sale consideration of Rs.9,2957- through the elders-PW2 and Ramsetti Doraiah on 10-12-1978. But the trial Court on an elaborate discussion of the evidence on record held in para 9 of its judgment that “there is absolutely no reliable evidence to show tliat the plaintiff has paid the balance of sale consideration to the defendants under the suit agreement. I am of the opinion that the plaintiff has only paid Rs. 1,5007- as advance to the defendants under EX.A4 and nothing more”. The plaintiff did not choose to prefer any appeal against this finding of the trial Court. Hence, this finding of fact of the trial Court went unchallenged before the Appellate Court. Thus, there is a categorical finding of fact that the plaintiff who is transferee under the agreement of sale failed to perform his part of contract i.e., in paying the balance of sale consideration to the transferors i.e., the appellant herein. Hence, the plaintiff is not entitled to claim protection under Section 53-A of the Transfer of Property Act on the basis of part performance of the contract.
7. The next point to be considered is regarding the maintainability of the suit filed by the plaintiff for mere injunction without seeking the relief of specific performance of the agreement of sale. The learned Counsel for the respondent-plaintiff vehemently contends that a person who enters into possession lawfully on the basis of agreement of sale can maintain a suit for injunction simpliciter without seeking the relief of specific performance of the agreement of sale. He further contends that it was more so, when, as in the instant case, the plaintiff had issued a notice to the defendant expressing his readiness and willingness to pay the balance of sale consideration. The learned Counsel for the respondent-plaintiff also relied on the decision of Bombay High Court in Laxman Pandu Khadke v. Pandharinath Purushottamm Rane (referred supra) for the said proposition. The facts in that case were tliat the plaintiff agreed
to purchase the land belonging to the defendants for total sun” of Rs. 11,5007- and paid a sum of Rs.8,5007- as earnest money and the possession of the land was made over by the defendant to the plaintiff by way of part performance of the agreement. The land was agricultural land and one of the terms of the agreement was that the permission for sale of land had to be obtained by the parties from the Collector. The plaintiff filed an application to the revenue authorities for necessary permission for sale of land but on the date fixed for consideration of the application, the plaintiff was present before the revenue authorities but the defendant failed to appear before the said authorities and as a result the revenue authorities liad no other alternative but to pass an order to the effect that the application was disposed of. Thereafter, the plaintiff wrote registered letter to the defendant expressing his willingness to pay the balance of amount and to take the conveyance from the defendant. Thereafter the plaintiff got information that the defendant was intending to transfer the said land to some one else and hence he filed the suit for declaration about his right under the agreement and for injunction restraining the defendant from interfering with his possession without seeking the relief of specific performance of the agreement. Under those circumstances, the learned single Judge while observing that the plaintiff was ready to perform his part of the contract and that the plaintiff’s possession is lawful, held that the plaintiffs suit for injunction simpliciter is maintainable. In the instant case, as stated above, the concurrent findings of facts by both the Courts below is tliat the plaintiff failed to pay the balance of sale consideration as per the agreement of sale, and that the plaintiffs plea in the plaint tliat he paid the balance of sale consideration before the olders PW 2 and another is not established. Hence tliat decision has no application for the facts in this case. In Mohd. Jahangir v. M/s Mallikharjuna Co-op. Housing Society Limited Represented by Us Secretary, , it has been held by this Court that a suit filed for pennanent injunction only without seeking the relief of
specific performance of the agreement of sale is barred under Order 2, Rule 2 of the Civil Procedure Code. I am inclined to follow the decision of this Court especially in view of the fact that the relief of injunction is an equitable relief and the same cannot be granted when the plaintiff has not established his readiness and willingness to perform his part of the contract and failed to seek the relief of specific performance of the agreement of sale. Hence, the plaintiff’s suit is not maintainable for the reason that the plaintiff has not sought for the relief of specific performance of the agreement of sale.
8. In Municipal Corporation of Delhi v. Suresh Chand Jaipuria, , their Lordships of the Supreme Court held that permanent injunction cannot be granted when an alternative efficacious relief is obtainable in any other usual mode or proceedings. But in that case remedy for the plaintiff was available under Delhi Municipal Corporation Act. When Section 41 (h) of the Specific Relief Act lays down that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode or proceedings. The principle underlying in clause (h) of Section 41 of the Specific Relief Act can be invoked so as to refused the preventive relief in favour of such suitor who docs not, even after repudiation of agreement of sale by the other party, seek the specific relief of enforcement of agreement of sale and merely seeks discretionary relief and preventive injunction from the Court. The position would be different if having asked for such a relief of specific performance, such a suit seeks preventive injunction of a temporary nature during the pendency of the adjudication. It is not possible to uphold the entitlement of such a suitor who has omitted to claim the real and as such efficacious relief which was available for the purpose of perpetual or permanent injunction so as to protect mere possession alleged and claimed under the agreement of sale. It would be a wise exercise of discretion not to further the inequity and
unfairness that would arise under such a situation. Further, when the plaintiff is entitled to seek the relief of enforcement of the agreement of sale by filing a suit for specific performance and omits to do it and merely seeks relief of injunction only for protection of possession, it will be open to the Court to infer that the plaintiff is not ready and willing to stand by and as such enforce the agreement of sale under which he seeks to protect his possession. This inference is inevitable when both the Courts below held that the plaintiff failed to pay the balance of sale consideration as pleaded in the plaint. Thus, when he is not ready and willing to perform his part of the contract under the agreement of sale, he is not entitled for the equitable remedy of injunction and the protection under Section 53-A of the Transfer of Property Act will also not be available to the transferee.
9, That a relief of injunction is a discretionary relief is now well settled. A party before it can ask a Court to exercise such discretion in its favour must show that it has shown equities in its favour which would impel a Court to exercise discretion in its favour. In the alternative the party seeking injunction must possess some right which the opposite party is trying to invade or there must exist an obligation in its favour whether contractual or otherwise in respect of which the opposite party is trying to commit breach. These principles clearly emerge out of Section 38 of the Specific Relief Act which deals under what circumstances the Court may grant-the discretionary relief of perpetual injunction. But in the instant case, none of these circumstances are in existence for granting the relief of perpetual injunction in favour of the respondent-plaintiff. Moreover, as held by both the fact finding Courts below that the plaintiff failed to pay the balance of sale consideration under the agreement of sale to the other party before seeking discretionary relief of injunction. The plaintiff claiming the relief of perpetual injunction has to establish the breach of obligation or infringement of his
legal right. In the instant case, the plaintiff failed to prove the breach of contract by the appellants-defendant but on the other hand it has come on record that the plaintiff himself committed breach of contract by his failure to pay the balance of sale consideration. The conduct of the party in seeking the equitable relief must be fair and equitable and should not be dishonest.
10. It is well settled that if the plaintiff comes to Court with a material averment that turns to be false, the Court would be slow in exercise of its power to grant the discretionary relief of injunction in favour of such a plaintiff vide the Regional Transport Officer v. N. V. Motor Service, AIR 1973 Ker. 219. In the instant case, the respondent-plaintiff pleaded positive plea in his plaint that he paid the entire balance of sale consideration in the presence of elders – PW2 and another on 10-12-1978 and both the Courts below categorically found that no such payment was either offered or made to the appellants-defendants. Hence, such averment in the plaint is false. On that count also, the respondent-plaintiff is not entitled for the discretionary relief of injunction. I am fortified in my opinion by the decision of our High Court in Kommisetti Venkatasubbayya v. Karamsetti Venkateswarhu and others, . In that case a suit was filed for specific performance of the agreement of sale and that the plaintiff had averred in his plaint that he had paid a sum of Rs.1,500/- on 14-10-1960 and that he had still to pay Rs.272.50 after deducting a sum of Rs.1,500/- already paid by him and that he was ready to pay that amount. In the course of trial, both the Courts below found that such pelading to be false. Hence, His Lordship relying on the decision of a Division Bench of Madras High Court in Subbarayudu v. Tatayya, 1937 Madras WN 1158 held thus:
“Thus plaintiff, in my view, was not only disentitled to the discretionary relief on the ground that he has set up a false plea but also on the ground that discloses that he was not ready and railing to perform his part of the contract.”
In Seemax Constructions Private Limited v. State Bank of India and another, AIR 1992 Del. 197, it is held that “the suppression of material fact by itself is a sufficient ground to decline the discretionary relief of injunction. A party seeking discretionary relief has to approach the Court rath clean hands and is required to disclose all material facts which may, one way or the other, affect the decision. A person deliberately concealing material facts’ from Court is not entitled to any discretionary relief The Court can refuse to hear such person on merits. A person seeking relief of injunction is required to make honest disclosure of all relevant statements of facts otherwise it would amount to an abuse of the process of the Court”. A Division Bench of this Court in Tatavarthi Jagannadham v. Akkineni Radhakrishna and another, 1997 (6) ALD 261 (DB), also took the same view that when the plaintiff approached the Court for discretionary relief for specific performance deliberately setting up a false plea is disentitled to the equitable relief. In that case, the plaintiff sought for specific performance of an agreement of sale with respect to Plot No.21 which is not covered by the suit agreement. Therefore, the Division Bench held that the plaintiff is disentitled to the equitable relief of specific performance even with regard to the land covered by the agreement of sale as he had set up false case and he has not come to the Court with clean hands. These observations of the Division Bench are applicable in all force where the relief sought for is the equitable relief of injunction.
11. Further, the fact that the plaintiff failed to pay ihe balance of sale consideration in pursuance of the agreement of sale, amount to revocation of the agreement of sale by plaintiff himself in whose favour the agreement was executed. Hence the right to retain the property is lost and the plaintiff having come into possession pursuant to part performance of the agreement of sale cannot retain the possession of the suit property when he himself had revoked the said agreement of sale.
12. The learned Counsel for the respondent-plaintiff submits that under Section 6 of the Specific Relief Act the Plaintiff can maintain a suit to safe-guard his possession with respect to the suit property. Section 6 of the Specific Relief Act has no application to the facts of this case. The plaintiff is not seeking the relief of recovery of possession in the suit. Section 6 gives special privilege to persons in possession who can take action promptly in case of their dispossession. In case they arc dispossessed Section 6 entitles them to succeed simply by proving (i) that they were in possession (ii) that they have been dispossessed by the defendant (iii) mat the dispossession is not in accordance with law and (iv) that the dispossession took place within six months of the suit. In the instant case, the plaintiff has filed the suit for permanent injunction and not for recovery of possession. Hence, none of the ingredients of Section 6 are applicable. Moreover, Section 6 lias no application if the relief of possession is not prayed for in the suit. The learned Counsel for the respondent-plaintiff also cited number of authorities under Section 6, but a reference to them is unnecessary.
13. It is also contended by the learned Counsel for the respondent-plaintiff that the possession of the plaintiff was lawful as he was inducted into possession in part performance of the agreement of sate and therefore he should not be dispossessed except under due process of law. This argument would have been appreciated if the plaintiff had performed his part of contract by paying the balance of sale consideration. As earlier stated both the Courts below found that the plaintiff failed to pay the balance of sale consideration. Under these circumstances the plaintiff will have no right to retain the possession which he got under the agreement of sale. When once the transferee commits default under the agreement of sale, his possession ceases to be lawful and he shall no longer be entitled to retain the possession which he got under the agreement of sale and will
not be entitled for the equitable relief of permanent injunction.
14. The trial Court having found, as quoted supra, that the intention of the plaintiff in filing the suit is only to get over the period of limitation for specific performance of agreement of sale, tliat there arc no equities on the part of the plaintiff and that the plaintiff is not entitled to equitable relief of permanent injunction without paying the consideration, has granted permanent injunction is favour of die plaintiff on condition that the plaintiff deposits the balance of sale consideration of Rs.9,295/- within two months from the date of judgment. I am unable to comprehend how such a relief could be granted in favour of the plaintiff in those circumstances. In my considered opinion, flic above relief granted by the trial Court is nothing but perverse and against the settled principles governing the granting of permanent injunctions as discussed supra. The first Appellate Court also has not considered the matter independently. On a perusal of the impugned judgment of the Appellate Court it is crystal clear that the first Appellate Judge without applying his mind simply confirmed, the trial Court judgment and in fact he copied it verbatim. Hence, the judgments of both the Courts below cannot be sustained and they are liable to set aside. Under the circumstances of this case, the respondent-plaintiff is not entitled for the equitable relief of permanent injunction against the appellants-defendants and his suit is liable to be dismissed.
15. in the result, the appeal is allowed with costs throughout. The Judgments and decrees of both the Courts below in AS No.25 of 1984 and OS No. 130 of 1982 are set aside. The suit OS No. 130 of 1982 on the file of the District Munsif, Prathipadu in East Godavari District is dismissed. The permanent injunction granted against the appellants-defendants is vacated. The respondent-plaintiff is permitted to withdraw the amount of Rs.9,295/- deposited by him into Court towards balance of sale consideration as per the directions in the decree.
The respondent-plaintiff is directed to deliver possession of the suit land to the appellants-defendants bytheendof August, 1998. Ifthe respondent-plaintiff fails to deliver possession of the same as directed above, the appellants-defendants are at liberty to obtain possession of the same through Court at the expense of the plaintiff. The-respondent-plaintiff is not entitled for the refund of the earnest money of Rs.1,500/- paid by him to the appellants-defendants under the agreement of sale. Because of the peculiar circumstances of this case, as discussed above, 1 deem it fit to grant such a relief to the defendants in the suit filed by the plaintiff.