SURENDRA RATHORE Vs. VISHWANATH BHASIN

JUDGEMENT

(1.) SIGNIFICANT question which arises in the writ petition is whether an application under section 94 of Code of Civil procedure, 1908 is maintainable for the purpose of grant of injunction without institution of the suit, there being no legal impediment in institution thereof.

(2.) PETITIONER Surendra Rathore without filing suit has filed an application before the Court of Second Additional District judge under section 94 (c) and 94 (e) read with section 151 of CPC and prayed for grant of temporary injunction against the respondents, restraining them from selling or alienating agricultural land comprised in survey No. 67/1 area 0. 344 hectare, survey No. 68/1 area 1. 011 hectare, total area 1. 355 hectare.

(3.) THE petitioner averred in the application that Vishwanath bhasin and Pramod Bhasin had agreed to sell the aforesaid agricultural land for a consideration of Rs. 10,25,000/- per acre. Pursuant to the agreement, the petitioner had paid a sum of Rs. 3 Lakhs by cheque no. 10585 and Rs. 1 Lakh by cheque No. 10587 of Bank of maharashtra, Jabalpur to Vishwanath Bhasin and further paid Rs. 3 Lakhs by cheque No. 10584 and Rs. 1 Lakh by cheque No. 10586 of the same Bank to Pramod Bhasin. Thus total advance of Rs. 8 Lakhs was paid as part payment of price on 7. 4. 2007. In acknowledge of oral agreement, petitioner and respondent executed the agreement on 7. 4. 2007. The petitioner approached the respondents several times but they did not execute the sale deed within the agreed time of three months. The petitioner came to know that respondents were trying to sell the property to someone else, thereafter the petitioner published a notice in Dainik Bhaskar newspaper on 15. 7. 2007 not to purchase the property from the respondents as he was holding the agreement to purchase the property. Time was not the essence of the contract. The act of unilateral cancellation of agreement and forfeiture of advance was illegal and not tenable in law. The petitioner was preparing to file suit for specific performance of the agreement but as a last resort he approached the persons through whom the bargain was settled to persuade the respondents to execute the sale deed. In the meanwhile the aforesaid part of the land was acquired by the Jabalpur Development Authority (for short jda) for its scheme No. 41. The petitioner required the said mediators to find out as to how much land out of the said Khasra numbers was acquired by JDA. He also made it clear that if any small portion taken by the JDA, he was willing to pay for the whole. Matter is pending with the mediators they are persuading the petitioner not to file the suit for specific performance and wait for settlement until the last date of limitation. As if the suit for specific performance is filed, it is likely to take long time for ultimate outcome with the result that petitioner will have nothing in hand except endless litigation, therefore, the petitioner has prayed that respondents be restrained from selling or otherwise alienating the property to someone else during the period right of the petitioner to file suit for specific performance subsists.