MAHESH CHAND HEDA Vs. MAHESH PRASAD

JUDGEMENT

(1.) THIS appeal has been filed by the appellants under Section 101 read with Order 48 Rule ICPC against the order dated 29th August, 1979 pasted by the Additional District Judge Ajmer, in Civil Suit No. 181 of 1979 whereby the Additional District Judge, rejected the application filed by the appellants under Order 30 Rule 1 C.P.G lead with Section 151 G P.G for grant of a temporary injunction restraining the dependent respondent from alienating to any other person the plot of land in respect of which the suit for specific performance of the agreement of the sale had been filed by the appellants against the respondent.

(2.) THE facts giving rite to the aforesaid suit for special performance may be briefly stated as under: The respondent is the owner of a plot of land measuring 318 sq. yds., situated at Ajmer. On 15th March, 1977 the respondent entered in to an agreement with the appellants for the sale of the said plot of the land for a sum of Rs. 20,000/ - and an agreement of sale thereinafter referred to as the 'Agreement') was executed by the parties Out of the sale price a sum of Rs. 4,000/ - was paid in advance as earnest money at the time of execution of the Agreement on 15th March, 1977 and It was agreed that the be dance amount of Rs. 16,000/ - would be paid by the appellants at the time of registration of the sale deed. In paragraph 2 of the Agreement a for aid it was provided that the respondent would obtain the no -objection certificate from the Competent Authority under the Urban Land (Ceiling and Regulations) Act, 1976, thereinafter referred to be as the 'Act') for the sale of the said plot to the appellants. In paragraph 5 of the Agreement it was s(sic)lpulated that the no -objection certificate from the Competent Authority was expected to be secured within 8 months subject of further extension by 4 months only and that on failure of of the respondent to obtain the no objection certificate the respondent shall refund to the appellants the earnest money amounting to Rs. 4,000/ - with interest at 12% per annum. In paragraph 6 of the Agreement it was laid down that if the respondent fails to execute and registered the sale deed within the period of one month of the intimation referred to in paragraph 2, the appellants would not only be entitled to the refund of the earnest money amounting to Rs. 4,000/ - but would also be entitled to receive from the respondent a further sum of Rs. 4,000/ - as liqui dated damages. It appears that the respondent did not take any steps to obtain the requisite no objection certificate from the Competent Authority under the Act during the period stipulated under paragraph 5 of the Agreement. After expiry of period prescribed in paragraph 2 of the Agreement the appellants paid a further sum of Rs. 1,000/ - to the respondent on 25th August, 1978 In the receipt dated 25th August 1978 executed by the respondent it is stated that the aforesaid sum of Rs. 1,000/ had been received towards earnest money in addition to the sum of Rs. 4,000/ - received on 15th March, 1977 towards earnest money for sale of the plot of land, and it was stated that the balance amount of Rs. 15,000/ -would be payable before the sub -Registrar at the time of registration and the other conditions of the agreement would remain effective and binding on the parties, On 29th August, 1978 the respondent moved an application before the Competent Authority under the Act for the grant of no -objection certificate and the Competent Authority under Act, by its communication dated 6th November, 1978 informed the respondent that do action could be taken on the aforsaid application of the respondent till a decision was taken on the return filed by the respondent under Section 6(1) of the Act. On 19th February, 1979 the respondent gave a notice to she appellants whereby he informed them that he had failed to obtain the no objection certificate from the Competent Authority under the Act and that the Agreement had became inoperative and was therefore, being revoked. The said letter was followed by another letter dated 14th March, 1979 addressed by the respondent to the appellants whereby the respondent enclosed a cheque of Rs. 6,050/ - on account of refund of the earnest money with interest. On 25th July, 1979 the appellants filed the suit for specific performance for the contract of sale of plot of land aforesaid against the respondent. The aforesaid suit was accompanied by an application under Order 39 Rule 1 read with Section 151 C.P.G for grant of temporary injunction restra(sic)ning the respondent from alienating the plot of land to any other person during the pendency of the suit. In his reply dated 10th August, 1979. to the said application the the respondent pleaded that no prime facie case for grant of injunction had been made out in view of the conditions laid down in paragraph 5 and 6 of the Agreement referred to in the plaint The respondent also pleaded that the appellants would not suffer any irreparable loss if the injunction is not granted in as much as express provision has been made in paragraph 5 and 6 of the Agreement with regard to payment of damages to the appellants. - The respondent also pleaded that the balance of convenience was in his favour. The aof(sic)esaid reply was supported by an affidavit of the respondent wherein he has stated that in accordance with said Agreement the said respondent has cancelled the said Agreement and the respondent was entitled to tell the land in dispute to any other eligible person. The Additional Distirct Judge, Ajmer by his order dated 29th, August, 1979 rejected the application for grant of temporary injunction as filed by the appellants In the order aforesaid the Additional District Judge held that although a prima facie case for spec fie performance of the contract of sale of the plot of and for grant of an injunction restraining the alienation of the plot of land had been established in favour of the appellant and no irreparable loss would be caused to the appellants if the injunction is not granted in favour of the appellants in as much as if the sale deed h executed by the respondent in favour of any person after she filing of the sult the purchser would be bound by the decree that is passed in the suit of the appellants. The Additional District Judge has also held that as no irreparable loss would be cawed to the appellants, it could not be said that the balance of convenience was in favour of the appellants, Being aggrieved by the aforesaid order of the Additional District Judge dismissing the application for grant of temporary injunction, appellants have filed this appeal before this Court.

(3.) SHRI U.N. Bhandari, the learned Counsel for the appellants, has submitted that the Additional District Judge, having held that the appellants have established a prime facie case in their favour, erred in dismissing the application for grant of temporary injunction on the view that if the injunction was refused no irreparable loss would be caused to the appellants. Shri Bhandari has submitted if the respondent is tot rest reined from selling the land in dispute during the pendency of the suit the result would be that the land will be purchased by third partier who would make constructions over the some and serious complications might arise. Shri Bhandari has also submitted that the Additional District judge has erred in holding that the balance of con vnenience does not lie in favour of appellants.