GANPATLAL Vs. NANDLAL HASWANI

JUDGEMENT

(1.) In the suit filed by respondent 1 in the Court below, appellant figured as defendant 13. In that suit, an order of temporary injunction being passed against him on 8-5-1987, he is aggrieved and has appealed. I have gone through the impugned order and I must say that criticism of appellant's counsel against that order of being cryptic and perfunctory is well justified.

(2.) There is no discussion at all in the impugned order of pleadings of parties to reach the conclusion that the plaintiff had a strong prima facie case to go to trial except the cryptic finding that in the suit for specific performance of contract for sale of the suit land, in the course of trial, it had to be determined to which of the parties had breached the contract. Surprisingly, despite having noted that the contract sought to be enforced was executed by defendant 2 in favour of the plaintiff and that the said defendant had sold the land to others and further sales were made of the same land, learned Additional District Judge did not take care to examine if under those circumstances, plaintiff could still hope to succeed in the suit and get a decree for specific performance. Similarly, even after having found that defendant 13 had got the sale deed executed in his favour by defendant No. 10 (herein respondent No. 11) on 22-11-1985 and had even started construction by digging foundation, little care was taken to consider in whose favour balance of convenience lay and whether the plaintiff would suffer irreparable injury if the temporary injunction prayed was not granted. Appellant's counsel is right, therefore, in submitting that in passing the impugned order, the court below did not act judiciously and as such the exercise of discretion by that Court cannot be upheld as unassailable and not liable to interference. 2A. Admittedly, as far back as on 17-1-1981, the agreement, in question, for sale of the suit land was executed by defendant 1 in favour of the plaintiff and the suit was filed much belatedly on 3-5-1984, only against defendants 1 to 7. It was only on 23-11-1984 that appellant's vendor, respondent No. 11, was impleaded in the suit. Be it also mentioned in this connection that the said respondent had purchased the land from respondents 3 to 5 who, in turn, had got the land similarly by a registered sale deed executed in their favour on 23-6-1982 by respondent 2. It had also come on record in the pleadings of parties (written statement by second respondent/defendnat 1 having been filed on 22-4-1984) that the plaintiff may not have been ready and willing to perform his part of the contract inasmuch as he took no steps to get the sale deed executed despite notice being served on him by respondent 2 on 25-2-1982 even after the period of sixty days contemplated under the agreement for execution of sale deed had expired on 16-9-1981. Not only these facts did not enter into learned Additional District Judge's consideration in reaching the conclusion concerning plaintiff's prima facie case, it is clear on the face of the impugned order that the court below did not care to look into the contract itself copy of which was filed by the plaintiff in support of his case.

(3.) Indeed, Cl.3 of that contract is of signal relevance inasmuch as mention is made there of the suit land being proposed to be sold with the structures (Patore) existing thereon and in that view of the matter, the learned Additional District Judge was required to consider if plaintiff's plea that he was willing and ready to get the sale deed executed, but the other side was the defaulter could at all be accepted. Under the agreement in question, a sum of Rs. 5,000/- only had been paid out of total consideration of Rs. 33,000/- and the further contemplation was that expenses for execution of the sale deed and for permission to be obtained, "if necessary", from Land Ceiling Officer, shall be borne by the plaintiff. In that connection, learned Additional District Judge ought to have checked up the relevant law in the context of plaintiff's case that defendant 1 had defaulted in arranging the requisite permission from the Land Ceiling Authority. In the impugned order, on those aspects of plaintiff's case, or for that matter weakness of his case, nothing has to be read. 3A. Counsel for plaintiff/respondent, Shri M.M. Kaushik cited authorities to support the impugned order, but I am of the view that those are of no avail. In Shankarlal Rathore, 1978 Jab LJ 51, it was held that in considering plaintiff's prima facie case, it had to be seen if the claim was not frivolous and that there was a serious question to be tried. In Ramadevi's case AIR 1987 Raj 143, plaintiffs had been put in possession of the suit land by the defendant under agreement of sale and in the context of that fact, it was held that plaintiffs could claim injunction against defendant from selling the land and from making any construction thereof. The situation in Venkat Dharmaji, AIR 1983 Bom 413 on facts was similar. In Mukesh v. Deo Narayan, AIR 1987 Mad Pra 85, it was held that the plaintiffs are required to show that they had a "strong prima facie case in support of the right which they asserted" and the court was required to "found that the plaintiffs had a strong probability of ultimate success".