MAM CHAND Vs. NARESH KUMAR

JUDGEMENT

(1.) THIS is defendants' revision petition challenging the impugned order dated 23.01.2009 whereby application filed by the petitioners under Order 7 Rule 11 CPC has been rejected.

(2.) AS per the averments, plaintiffs-respondents filed the present suit for mandatory injunction with consequential relief of permanent injunction against the petitioners alleging that vide agreement to sell dated 05.05.2006, the respondents agreed to purchase the land measuring 24 kanals 9 marlas in village Nigdhu, District Karnal and received earnest money. The last date for executing the sale deed was stipulated as 30.04.2007. The possession of the land was also alleged to be handed over to the plaintiff-respondents. The present suit was filed by the plaintiff respondents on 22.03.2007 alleging that there was a typographical mistake in the agreement of sale with regard to the sale consideration which needs to be corrected and necessity arose to file the mandatory injunction to get the recital in the agreement of sale corrected, with further prayer for permanent injunction restraining the petitioners from alienating the suit land in any manner.

(3.) CHALLENGING the aforesaid order, learned counsel for the petitioners has vehemently argued that in view of the clear bar of Section 41(h) the present suit was not maintainable as equal and efficacious remedy of specific performance of the agreement to sell was available to the respondents. Learned counsel further argued that from the relief sought in the suit, it is crystal clear that plaintiff-respondents were liable to affix ad valorem court fee as relief sought is for specific performance of the contract and thus the suit was liable to be rejected under Order 7 Rule 11 CPC.