ORDER
S.C. Pandey, J.
1. This is an appeal filed by defendants 1 and 2 against the order dated 17-3-1994 passed by Smt. Aradhana Choubey, third Additional Judge to the Court of District Judge, Rewa in Civil Suit No. 4-A/94. This appeal has been filed under Section 104, read with Order 43, Rule l(r) of Code of Civil Procedure.
2. Undisputed facts of this case are that the appellant No. 1 owned Khasra No. 348, area 0.54 acres, Khasra No. 367, area 0.05 acres, Khasra No. 389, area 0.07 acres, Khasra No. 374, area 0.08 acres and Khasra No. 361, area 0.01 acres situate in village Sonvarsha, Tehsil Sirmaour, Distt. Rewa. The total area of aforesaid land comes to 0.80 acres of land.
3. The respondent No. 1 filed Civil Suit No. 4-A of 1994 for specific performance of agreement dated 4-4-1993. He claimed that pursuant to the aforesaid agreement with appellant No. 1 he had paid Rs. 36,300/- to appellant and was ready and willing to pay the balance of amount Rs. 3,700/-. Thus according to respondent No. 1 the sale price of the entire land was Rs. 40,000/-. In his pleadings the, respondent No. 1 also claimed that the possession of suit land was delivered to him in pursuance of the agreement to sell and from 4-4-1993 he was in continuous possession of the land. It was further stated in the plaint that appellant No. 1 had executed a registered sale-deed dated 20-10-1993 in respect of the land in dispute and sold it to appellant. No. 2. The respondent No. 1 made a prayer that this registered sale-deed dated 20-10-1993 be declared null and void because the appellant No. 2 had got the sale-deed executed in his favour with full knowledge of previous agreement. The respondent No. 1 also claimed to be in possession of the lands in dispute and, therefore, claimed a further relief of permanent injunction against the appellants 1 and 2 who were defendants Nos. 1 and 2 respectively in the suit. The respondent No. 2 the State of Madhya Pradesh is a proforma party to the suit.
4. In order to appreciate the controversy in the suit a few more facts are necessary. It was staled in the plaint that the appellant No. 1 received Rs. 20,000/- on 15-1-1993 on the basis of an oral agreement to sell the aforesaid land. The agreed price was determined at Rs. 40,000/-. The appellant No. 1 gave receipt dated 15-1-1993 whereby he accepted that he had received Rs. 20,000/-. On 31-3-1993 a sum of Rs. 8,000/- was advanced to appellant No. 1 towards the sale price. This transaction is evidenced by a receipt cum promissory note dated 31-1-1993. The respondent No. 1 stated that a further sum of Rs. 8,300/- was advanced to appellant No. 1. Thus the total sum received by the appellant amounted to Rs. 36,300/-. On 4-4-1993 the appellant No. 1 executed an agreement of sale in favour of respondent No. 1 and agreed to get a proper and registered sale-deed executed in receipt of balance of Rs. 3,700/-. However, it was agreed in writing that the respondent No. 1 shall be delivered the possession of land in dispute. Accordingly the respondent No. 1 was placed in possession on 4-4-1993.
5. During the pendency of civil suit, the respondent No. 1 filed an application under Order 39, Rules 1 and 2 of Code of Civil Procedure claiming that appellants were disturbing his possession and, therefore, they be restrained personally or vicariously through their agents from interfering with his possession. This application of respondent No. 1 was supported by affidavits of local persons alleging that respondent No. 1 was in cultivating possession of the land in dispute since 4-4-1993 and continued to be so on the date of the suit.
6. The appellants denied that the respondent No. 1 was ever placed in possession. They also filed affidavits in support of their case that they were in possession. Thus the application for injunction was seriously opposed by the appellants.
7. The trial Court has granted temporary injunction in favour of the respondent No. 1 holding inter alia, that all the three considerations – (i) prima facie case (ii) irreparable injury and (iii) balance of convenience were in favour of the respondent No. 1. Therefore, it exercised its discretion in favour of respondent No. 1.
8. It appears that trial Court gave a finding of possession in favour of respondent No. 1 because Naib Tahsildar in revenue case No. 6/46A/93-94 had found in proceedings under Sections 110/10-115 M. P. Land Revenue Code that respondent No. 1 was placed in possession. The matter was pending in appeal but the stay granted in the appeal did not affect the finding of Naib Tahsildar and, therefore, trial Court accepted the finding of Naib Tahsildar.
9. The learned trial Judge refused to rely on affidavits of either party for deciding the question of possession. This Court too holds that affidavits are stereotyped and cannot be relied upon.
10. Having found that respondent No. 1 was placed in possession and that there was evidence on record that respondent No. 1 had given some money to appellant No. 1 the Court below held that there was serious question to be tried between the parties and respondent No. 1 had prima facie case in his favour. It was held that there would be irreparable injury to the appellant which could not be compensated in terms of money and further that the balance of convenience was in his favour.
11. I am afraid that this Court cannot rely on the decision of Naib Tahsildar in Revenue Case No. 6/64-A/93-94. This order has been set aside by order dated 8-9-1994 passed by Sub-Divisional Officer in Revenue Appeal No. 13/6A/93-94. The case is remanded for further enquiry. I am grateful to the counsel for respondent No. 1 for bringing this subsequent event to the notice of this Court. It is well established that this Court can take note of subsequent event. Nor does the stay order granted by Addl. Commissioner in further appeal and consequential order of Sub-Divisional Officer pursuant to order of the Addl. Commissioner affect the merits of the order passed by the S.D.O. Only implementation of the remand order passed by the Sub-Divisional Officer has been stayed. That does not revive the order of the Naib Tahsildar.
12. At this stage, I must meet the argument advanced by the learned counsel for the respondent No. 1 Shri P. R. Bhave; learned counsel urged that despite the order of remand passed by the Sub-Divisional Officer the Court can still accept the finding of fact recorded by the Naib Tahsildar because the S.D.O. has remanded the case on technical grounds. In fact the moment the order of Naib Tahsildar was set aside, it became non est in the eye of law. It is of no use to this Court for giving any finding. Therefore, the contention of the learned counsel is rejected as untenable in the eye of law.
13. The learned counsel for the appellant has urged a legal point to the effect that in this suit the respondent No. 1 cannot claim permanent injunction and also temporary injunction. He relies upon the Doctrine of Part-Performance as envisaged in Section 53A of Transfer of Property Act. The contention of the learned counsel proceeds on the assumption that Section 53A of Transfer of Property Act provides that a person subject to contract of sale can defend his possession when a suit is filed against him. But he himself cannot file a suit on the basis of Doctrine of Part-Performance.
14. The learned counsel relied upon Probodh Kumar Das and ors. v. Dantnara Tea Co. Ltd. and ors., AIR 1940 PC 1, and certain other cases on this point. Since this Court agrees with a view that Section 53A of Transfer of Property Act cannot be used as a sword but only as a shield, it is not necessary to refer to any other decision which merely affirms that principle. Thus it is well established that a plaintiff cannot bring a suit based on doctrine of part-performance in order to protect his possession. No contrary decision was cited by the learned counsel for the respondent No. 1.
15. The learned counsel for the respondent No. 1 however, urged that this is a suit for specific performance and in this suit a relief of permanent injunction can be sought. It is not a suit for declaration simpliciter or for confirmation of possession. The question of application of doctrine of part performance did not arise.
16. In my opinion the contention of learned counsel for respondent No. 1 finds support from Section 22 of Specific Relief Act which reads as under :-
“22. (New) (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for –
(a) possession, or partition and separate possession, of the property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or (made by) him, in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed,
Provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.
(3) The power of the Court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under Section 21.”
17. It may readily be seen that this section permits the plaintiff to claim by way of additional relief “any other relief” including refund of earnest money or deposit. The words ‘any other relief to which he is entitled’ are wide enough to embrace the relief of permanent injunction provided that relief can be genuinely claimed by a purchaser who was placed in possession. Thus the question of application of Section 53A of Transfer of Property Act to suit for specific performance does not apply. Here the plaintiff is claiming the equitable relief of specific performance in respect of an immovable property. Such a relief of specific performance in India is a creature of statute. That very statute permits the plaintiff to claim any other relief to which a plaintiff is entitled. A plaintiff in possession suing for specific performance, can definitely claim a relief of permanent injunction restraining the defendant from interfering with his possession. Here the plaintiff is not relying on mere ‘contract of sale’ to protect his possession but claiming that contract of sale be enforced and his possession be protected by a permanent injunction. It is, therefore, held that appellant is entitled to file a suit for permanent injunction.
18. The next question that has to be decided is whether the Court below rightly granted temporary injunction. It is perfectly clear from what has been stated earlier that the order passed by the Naib Tahsildar is of no value. Therefore, this Court must look into other circumstances.
19. The learned counsel for the respondent No. 1 Shri P. R. Bhave has very fairly placed the relevant document on record along with his reply to the application for stay. Having considered and after deeply pondering over the matter this Court comes to the following conclusion. It appears that on 15-1-1993 appellant No. 1 Ramnidhi passed a receipt for Rs. 20,000/- for loan advanced to him (Annexure R-2). It is interesting to note that he had also accepted his liability to pay 24% per annum, on this amount. This aspect of the transaction was highlighted by the counsel for the appellant. The document is silent about sale-transaction. It appears at this stage, the parties did not consider the sale of land. It appears to be simple loan at interest. Then the subsequent document dated 31-7-1993 (Annexure R-2) is in printed form. It appears to be a receipt-cum-promissory note. One part of it is a receipt which is signed by Ramnidhi, the appellant No. 1. It acknowledges receipt of Rs. 8,000/-. There is nothing to show from both these documents that parties contemplated sale-transaction. On the other hand, only the receipt is signed by the appellant No. 1 not that part which contains promissory note. The Court cannot refuse to take notice of the fact that printed forms are used by money lenders. On 1-2-1993, it is alleged that a further sum of Rs. 8,000/- was advanced but there is no writing produced by the counsel for the respondent No. 1 for this transaction. The third document dated 4-4-1993 (Annexure R-3) purports to be an agreement to sell. It is this document which must bear the close scrutiny for it forms the foundation of rights of the respondent No. 1 who has filed a suit for specific performance on its basis. This appears to be an agreement to sell the lands in dispute for Rs. 40,000/- and clause 4 stipulated delivery of possession to the respondent No. 1. However, such recitals are often made and, therefore, it must be established aliunde that possession was actually delivered pursuant to that agreement.
20. It appears to the Court that the respondent Rashi Raman Mishra was lending money to appellant No. 1. He charged interest at the rate of 24%. The second document shows that the respondent No. 1 was using a printed form used by money lenders prima facie, showing that he used to lend money or he is a money lender. This position is further confirmed by the transaction dated 1-2-1993 by which the appellant No. 1 took another loan of Rs. 8,000/-. On 4-4-1993 the appellant No. 1 appears to have received Rs. 300/-. A look at the signature of appellant No. 1 on Annexures R-1, R-2 and R-3 and his power of attorney in this Court would reveal that appellant No. 1 is not a literate person. He barely knows how to sign. Therefore, the possibility of his signing of these documents under pressure cannot be ruled out.
21. It appears that the appellant No. 1 was in need of money and the documents Annexures R-1, R-2 and R-3 were executed in order to secure the loan. Thus the balance of convenience is not a favour of respondent No. 1 because he will get possession if he gets a decree of specific performance. At present he has an equitable right to get a decree of specific performance. Merely by filing a suit the respondent No. 1 does not get right to retain possession even if he was placed in possession. The inchoate right of specific performance of contract of sale of immovable property yet to ripen into the right to hold the land as owner. The implementation of this right is contingent and not absolute. We have borrowed the Specific Relief Act from English Law of Equity. Thus, this right retains trappings of Law of Equity. The students of law of equity know that it is flexible and gives judges a wide discretion. So, in the suit for specific performance the Court is not bound to grant a decree straight way even according to our statutory law. No doubt, the discretion is bound to be exercised according to sound judicial principles but nevertheless it is a discretion. Thus the relief of specific performance is carved out of that category of rights where the Court has no discretion in granting relief.
22. The appellant No. 1 has already executed the sale deed in favour of appellant No. 2. Prima facie the appellant No. 2 has the title to suit land. Thus the balance of convenience is in favour of the appellant.
23. Assuming for a moment that respondent No. 1 is in possession, he will suffer no irreparable injury in case he is dispossessed as a consequence of refusal of temporary injunction. He will be dispossessed only during pendency of suit. The decree for suit for specific performance in favour of respondent No. 1 shall clothe him with right to obtain possession.
24. The result of the above discussion is that this Court holds that the respondent No. 1 is unable to prove that he is entitled to temporary injunction on the matters placed by him on record. However, it is made clear that trial Court will decide the case on merits, after full trial and with due attention to merits of the case. The findings of this Court in this appeal shall not bind him and he shall be free to grant decree of specific performance if evidence led before him entitles the respondent No. 1 to such a decree.
25. Before parting with this case, it may be pointed out, that the attention of this Court was drawn to order-sheet dated 4-7-1994 which reads as under :-
“4-7-1994 Shri K. P. Mishra counsel for the appellant.
Miss Kholia counsel for the respondent No. 1
Heard on admission.
The appeal is admitted for final hearing. Notice be issued to the respondent No. 2 on payment of process fees within a week, only.
Also heard on I. A. No. 4827/94 for stay. Both the appellant/defendant and Respondent No. I/Plaintiff claim to be in actual possession of the suit property. The Court below did not act upon the affidavits filed by the parties. Hence a report be called for from the S.D.O. Sirmour, (Rewa) as to the person in actual possession of the suit property, on the date of filing of the suit, namely, 17-3-1994. The report shall be submitted within 2 weeks from the date of receipt of the copy of this order. Post the I. A. No. 4827/94 for stay, after receipt of the S.D.O.’s report meanwhile, status quo be maintained.
C. C. be given
Sd/-I. P. Rao
JUDGE”
26. Consequently, the Sub-Divisional Officer, Sirmour had sent a report that Naib Tahsildar went to the spot and found possession of the appellant No. 1. The counsel for appellants wanted to rely on this report. This Court has not considered this document for arriving at any finding. In other words this document has not influenced the mind of the Court in the decision making process either way. Therefore, there is no occasion to consider the argument that this Court is bound by the previous order-sheet in respect of stay matter. The result is otherwise in favour of the appellants.
27. As a result of discussion aforesaid, the appeal is allowed. The order dated 17/3/1994 passed by the Court below is set aside and temporary injunction granted by it is vacated.