JUDGMENT
S.N. Bhargava, J.
1. This is an appeal against the order of District Judge, Jaipur District, Jaipur, granting an injunction against the defendant appellants, restraining them from selling the land of Khasra Nos. 1111 and 1112 and from making any constructions, and further directing to maintain the status quo.
2. The plaintiff-respondent filed a suit for specific performance on the basis of an agreement by the appellant in favour of the plaintiff-respondent. The first agreement was dt. 12-7-75 by which the defendants agreed to sell land measuring 6 Bighas and 12 Biswas out of Khasra No. 1111 for a sum of Rs. 1,85,000/- and a sum of Rs. 100/- was given in advance. It was further agreed that as soon as the respondent Society paid a sum of Rs. 50,000/-, the possession of the property would be handed over to the Society. The time given in the agreement was of six months. Since the respondent Society could not pay the amount, the time was extended initially up to 31-12-76 and again up to 31-12-78. On 28-12-78, another agreement was executed by which the appellants agreed to sell the land to the respondent Society on the same terms, except the portion of land measuring 56′ X 80′ on the South-West corner preserved for Satsang Bhawan and the portion on the North-East corner where there was a well and pump set installed. The land was enclosed by barbed wires. A map was also enclosed along with the agreement. On 15-4-79, the possession of the land as mentioned in the agreement dt. 28-12-78 was also handed over to the Society through another written ‘RUKKA’. The defendants also signed the site plan in token thereof. The total sum of
Rs. 1,29,950/- was paid on different dates by the Society to the defendants. On 21-4-80, a notice was sent by the respondent Society to the defendants that it had come to their notice that out of the land the possession whereof has been handed over to the respondent Society, land measuring 2 Bighas 16 Biswas belonged to Khasra No. 1112. A detailed reply to this notice was given by the defendants in which they explained the whole situation as to under what circumstances they have entered into an agreement with the plaintiff society. The present suit was filed by the respondent Society for specific performance on 29-6-83.
3. An application under Order 39, Rules 1 and 2 CPC read with Section 151, CPC was also filed along with the plaint on 29-6-83 and the trial Court passed an ad interim order on 30th June, 1983 that the defendants should not sell the property shown by Red colour in the plaint nor they should make any constructions thereon.
4. The defendants filed the reply of the stay application on 12-8-83 and thereafter, the trial Court after hearing the arguments, passed the impugned order granting an injunction against the appellants from selling any land out of Khasra No. 1112, and directing not to make any constructions and to maintain the status quo. It is against this judgment that the present appeal has been filed.
5. Learned counsel for the appellants has vehemently argued that in a suit for specific performance, the Court should not grant temporary injunction and in this connection, has placed reliance on Krishna Moorthy Koundar v. Paramasive Koundar, AIR 1981 Mad 310.
6. On the other hand, learned counsel for the respondent has submitted that this view taken by the Madras High Court in Krishna Moorthy Kounder’s case (supra), is not correct and has been dissented by the Bombay High Court in Venkat Dharmaji Gontalwar v. Vishwanath, AIR 1983 Bom” 413. He has further placed reliance on 1980 WLN (UC) 401 in which case this Court has held that a temporary injunction restraining the defendant from selling the land can be passed in a suit for specific performance. In
that case, the learned Additional District Judge, dismissed the application for grant of temporary injunction. In appeal, this Court set aside the judgment of the learned Additional District Judge and observed as under : —
“If the respondent is permitted to sell the plot of land in question to a third party during the pendency of the suit, the effect would be that purchaser may make constructions over the land in dispute which may lead to further complication as well as litigation causing delay in appellants securing possession of the land in dispute”.
7. I have carefully gone through these authorities and I am of the view that the view taken by this Court in 1980 WLN (UC) 401 (Mahesh Chand Heda v. Mahesh Prasad), is correct. Bombay High Court in Venkat Dharmaji Gontalwar’s case, (AIR 1983 Bom 413) (supra) dissented from the view taken by the Madras High Court in Krishna Moorthy Koundar’s case (AIR 1981 Mad 310) (supra). The case of the plainliff is that it has been put in possession of the suit land under an agreement of sale. Ordinarily his rights should be protected. There is no bar under C.P.C. which can be invoked in support of the proposition that the plaintiff suing for specific performance cannot obtain any injunction whatsoever and since there is no bar in the CPC, an application for grant of temporary injunction is solely governed either by Order 39, Rules 1 and 2, CPC or by the inherent powers u/s. 151, CPC. Injunction is a preventive relief and if the respondent is permitted to sell the plot of land to third party during the pendency of the suit and the third party may make constructions, it will obviously cause further litigation and complication and as such, I am not inclined to follow the view taken by the Madras High Court in Krishna Moorthy Koundar’s case (supra).
8. Learned counsel for the appellants has further submitted that the plaintiff had neither the prima facie case nor the balance of convenience was in its favour nor it was likely to suffer irreparable injury and that since there was no averment in the plaint that the plaintiff was ready and willing to perform its part of the contract, the suit cannot succeed. He has further submitted that the identity of
the property has not been established. The agreement was only in relation to Khasra No. 1111 whereas the main dispute between the parties is with regard to Khasra No. 1112. He has further submitted that the defendant-appellants have no objection if the injunction is maintained with regard to Khasra No. 1111. He has then submitted that the trial Court has not considered the various objections taken by the defendants in their written statement like that of limitation and payment of Court-fees etc., and without deciding or coming to the conclusion that it has some prima facie case, injunction has been granted. In this connection, he has placed reliance on Banshilal v. Noor Mohammad, 1970 WLN 105 : (AIR 1970 Raj 244) and has submitted that merely by execution of the agreement to sell the property, no interest is vested in the plaintiff and it is not entitled to claim any injunction against the defendant appellants. He has also placed reliance on Smt. Dhau Bai v. Pherozshah, 1970 Raj LW 594. Rajendra Prasad Rai v. Rajdeva Rai, AIR 1974 All 294, Manohar Lal v. Smt. Rajeshwari Devi, AIR 1977 All 36 and AIR 1978 Kant 98, (Gurupadayya Shivappa Hiremath v. Shivappa Basappa), wherein it has been held that if the plaint does not disclose that the plaintiff was ready and willing to perform his part, the plaint does not disclose any cause of action and the suit for specific performance should be dismissed.
9. On the other hand, learned counsel for the respondent has vehemently submitted that granting of an injunction is a discretionary relief and the appellate Court should not interfere in appeal with the exercise of discretion by the trial Court and substitute for it, its own discretion, unless the judgment of the trial Court is vitiated being arbitrary or perverse or that the lower Court has not followed the sound legal principles or has failed to consider all the relevant record. Mere possibility of the appellate Court coming to a different conclusion on the same facts and evidence, will not justify interference and has placed reliance on Smt. Vimla Devi v. Jang Bahadur, AIR 1977 Raj 196. He has further drawn my attention to the plaint and has submitted that there is a specific mention regarding the fact that the plaintiff was ready and willing to perform its part of the contract
and has placed reliance on Section 43 of the Transfer of Property Act as also Section 13 of the Specific Relief Act. He has further stated that the plaintiff has stated in the plaint that a sum of Rs. 1,19,950/- has been paid to the defendants and as such, they are bound to perform their part of the contract. It cannot be disputed that the possession of the land marked in the site plan was handed over to the plaintiff after the receipt of amount. He has also placed reliance on Durga Prasad v. Kanhaiya Lal, AIR 1979 Raj 200 and Gangubai Bablya Chaudhary v. Sitaram Bhalchandra Sukhtankar, AIR 1983 SC 742.
10. I have considered the various submissions made at the bar and have also gone through the various authorities cited before me and in my opinion, this appeal deserves to be dismissed. Grant of an injunction on particular facts and circumstances of the case, is a discretionary matter and once the trial Court has exercised its discretion while granting an injunction, the appellate Court ordinarily should not interfere with such discretionary order, unless of course the lower Court acts arbitrarily or perversely, capriciously or in disregard of sound legal principles and without considering all the relevant records. In the present case, none of these conditions are fulfilled. It is an admitted fact that the defendants received a sum of Rs. 1,29,950/- and that the possession of the land shown in the site plan including land of Khasra No. 1112 has been handed over to the plaintiff and, therefore, I am of the view that the plaintiff has got a prima facie case and will suffer irreparable injury if the injunction is not granted in his favour. As such the conditions for granting an injunction are satisfied and the trial Court was justified in granting the injunction in favour of the plaintiff respondent. I am not making any observations with regard to the merits of the case as it may prejdice either party when the case comes up for decision before the trial Court.
11. In the result, the appeal is dismissed and the parties are left to bear their own cost.