AJAY NARANG Vs. RAM ENTERPRIZES

JUDGEMENT

(1.) Challenge in this writ petition under Article 227 of the Constitution is made to an order-dated 3.3.2010 - Annexure P/7 passed by the 4th Additional Judge to the Court of District Judge, Bhopal in Misc. Civil Appeal No. 73/2008, whereby an order of injunction passed by the trial court vide Annexure P/6 on 25.4.2008, is interfered with.

(2.) Facts in a nut-shell, necessary for disposal of this writ petition, indicate that the Petitioner and Respondent firm, which is a partnership firm, had entered into an agreement in the matter of development of certain land and construction of flats/houses. The agreement in question entered into between the parties is available on record as Annexure P/3. The agreement, termed as a Joint Venture agreement, was executed between the parties on 31.5.2005 and the Petitioner herein, who is referred to as the first party in the agreement, being owner of certain land which is divided into 65 plots, agreed to permit the Respondent/firm to make construction of house and flats on the terms and conditions stipulated in the agreement. On the ground that in breach of the agreement, the Petitioner is selling various plots out of the 65 plots covered in the agreement, suit in question was filed by the Respondent/firm before the 4th Civil Judge Class II, Bhopal. The said suit was registered as Civil Suit No. 314-A/2008 and the Respondent firm sought permanent injunction and declaration. In the suit in question, Respondent/firm sought a declaration to the effect that a decree be passed in favour of the Plaintiff giving exclusive rights to develop, construct and sell the plots mentioned in the agreement. Further prayer made was that a permanent injunction be granted in favour of the Plaintiff against the Defendant restraining the Defendant from alienating the 65 Plots. Annexure P/1 is a copy of the plaint. Alongwith the plaint an application for temporary injunction under Order XXXIX Rule 1 and 2, of the Code of Civil Procedure, was filed and the temporary injunction sought for was to injunct the Petitioner/Defendant from alienating the plots indicated in the agreement. The learned court below after evaluating the facts and circumstances of the case found that no prima facie case is made out. Apart from finding various aspects with regard to non-compliance with the agreement by the Respondent/firm, the court below found that the agreement in question was terminated by the Petitioner/Defendant, a notice of termination was sent and it was held that under law the notice is served on the Respondent/firm. That apart, it was found that the Respondent has only sought for a declaratory decree, they have not sought specific performance of the agreement and after taking note of the provisions of Section 41 and 42 of the Specific Relief Act, 1963, it was found by the trial court that no case for injunction is made out and the application for temporary injunction was rejected. However, on an appeal being filed by the Respondent/firm, injunction was granted by the appellate court vide order-dated 3.3.2010 - Annexure P/7 and, therefore, Petitioner is before this Court assailing the aforesaid grant of injunction.

(3.) Shri Ravish Agrawal, learned Senior Advocate, assisted by Shri Abhishek Arjaria, Advocate, pointed out two glaring infirmities in the order passed by the learned appellate court. It was pointed out by Shri Ravish Agrawal, learned Senior Advocate, that in the order passed by the trial court on 26.4.2008 - Annexure P/6, apart from evaluating various aspects of the matter on merits in paragraph 9, the trial court has recorded a finding with regard to notice issued by the Petitioner for termination of the agreement and the fact with regard to service of notice on the Defendant. The second contention of Shri Ravish Agrawal, learned Senior Advocate, was to the effect that in paragraph 11, the learned trial court has taken note of the relief claimed by the Plaintiff and finding that no relief for specific performance of the agreement is sought for, application for injunction is rejected. It is argued by learned Senior Advocate that both these vital questions which are legal questions and because of which existence of prima facie case on behalf of the Plaintiff is not made out, the appellate court totally ignored and proceeded on merits without taking note of these two legal questions.