fRJ? 0T3 HIGH COURT OF CHHATTISGARH: BILASPUR 5.3. HON'BLE SHRI VIJAY KUMAR SHRIVASTAVA, J MISCELLANEOUS APPEAL NO. 896 of 2005 Siyar'am Agrawal, a AppeHarrr : mwmH s/o La+e Shri Hanuman Pmsad AgmwaL aged abou‘r 69 year's, r/o Ramsagnr Para, Raipur, Teh & Dist Raipur (CG). Vs. 1 Respanden-I-i Pooran Singh, agedabou‘f 84 years, r-/o Purani Bas-H, Raipur' Teh & Disf Raipur (C5) Presently residing a‘r House No.31/228, Civil Line, Raipur- (C6). W a f . u Dzfendam‘ ; ’ s/o LaTe Shri Par-akh Singh, PRESENT: 5hri H5 Pa'rel, counsei for The appellant Shri BP Sharma, counsel for The responden't.‘ ‘ORDER ( Passed on 28’” Sepfember 2005) This appeal is directed againsl' a’he Order da'ied 27.06.2005 passed by 'lhe Dis‘rricf Judge, Raipur- in Civil Sui'l No.7-A/2005 vide which fhe applicafion filed by 1he appellan'r under- Order- 39 Rules 1 & 2 of The CPC for gran'l' of fempor'ary injunction has been rejected. . ( 2) Plain‘riff filed a suif for speeific ‘performance of fhe con-frac? and delivery of possession of 'l'hejuil' land averring fha‘l’, on i , F AE OM 04.01.2004, a wri‘H'en agreement was execufed by fhe defendan‘r in his favour whereby defendanf agreed fo sell fhe suif land and fowards c‘onsiderafion ob'rained an advance amoun't of Rs.10,00,000/; (Rupees Ten lakhs). According 1’0 The plain‘riff, subsequenfly on 26.03.2004defendan‘r also received Rs.50,000/- (Rupees fif‘h/ .‘l'housand). Regisfered sale deed was 1'0 be execufed affer demaroa+ion of fhe land. The appellanf was always ready and willing f0 perf6rm his par'r cf 'rhe con'rracf, buf 'rhe respondent, on one preTex‘r or 'l'he ofher, avoided, and on being served wi'l'h a legal nofice on 07.03.2005, filedva reply informing 'l'haf The confrac'r has been rescinded. Ahhough The respondem' admi'l's Tha'r, an agreement f0 sell has been execu-red by him and also admifs receipt of Rs.10 lakhs in advance, denies The claim of 1‘he appellant e 3) The appellan'l’ filed an applica‘l’ion under Order 39 Rules 1 & 2 of +he CPC for gran? of femporary injunction agains‘r The defendan'l’ by issuance of an order prohibifing hing 1’o aliena‘re The proper'fy during fhe pendency of fhe suit The responden'r opposed ll The same. we: 4) Learned Trial CourT, afTer hearing boTh The parTies‘and Taking inTo consideraTion all The maTerial produced before iT for consideraTion of The applicaTion, held ThaT balance of ~-\ ( uW "\ »m q 67K convenience and principle of irreparable loss do not lie in favour of The appellant fherefore, by impugned order, rejecfed his applica'l’ion. l 5) i The appellant, relying on ‘l’he judgmen‘f rendered by l Hon'ble fhe Apex Cour? in Hindustan Pefra/ewn Corpamfion Limifed l Vs 5riman Narayan and anafher reported in 2002 Vol. 5 SCC 760 l and The judgmenf rendered by Hon’ble The High Courf of MP in Khubi ‘Vé QJ/ab reported in Weekly Nofe 1993 short no'l’e 331, confended that learned Court below, holding the case prima facie in favour of the appellant, has no right to deny the temporary injunction in his favour. . 6) On the other hand, the respondent, relying on the judgment rendered by Hon'ble the Apex Court in MP Hausiry Eoard Vs Ani/ Kumar Khiwani, reported in AIR 2005 SC 1863 in (para 22), contended that, for temporary injunction being equitable relief, it is necessary that the appellant must establish not only prima facie case but also balance of convenience and irreparable loss in his favour. 7) The agreement to sell was executed on 04.01.2004 by the respondent in favour of theappellant and admittedly, a sum of Rs.10 lakhs as an advance was received by ‘the respondent. The appellant himself has filed the spit for possession, therefore, it is es'rablished that by fhe agreemem' 1’0 3e“, fhe responden'r did no1' deliver possession of 'rhe sui‘r land To fhe appellant As per The agreement The sale deed was required To be execuTed wJThin five monThs from The daTe of demarcaTion. AppellanT's conTenTion is ThaT demarcaTion has noT yeT been compleTed, whereas respondenT's cjonTenTion is ThaT, Iong back, in The knowledge of appellanT, demarcaTion has been done, buT, The appellanT was noT ready and willin‘g To perform his parT of The conTracT. Learned CourT below virTually, Taking inTo accounT The Time facTor menTioned in The agreemen'l' To sell, held The suiT prima facie in favour of The appellant Learned CourT below found ThaT The appellanT has already enTered inTo a conTracT To sell The suiT land To anoTher‘person Though TiTle has noT been Transferred in his favour so far. Therefore, in iTs view, balance of convenience does no'l' lie in favour of The appellant Learned CourT below also held ThaT in case of refusal of a decree for specific performance, The appellanT can claim compensaTion, Therefore, no irreparable loss could be caused To hima, v a 8) In para 6D of The memo of appeal, a reference has been made regarding agreemenT To sell The land by The appellanT To anoTher person, alThough iT hasbeen menTioned ThaT The agreemen'l’ relaTes To oTher subjecT maTTers, buT iT is noT conTended ThaT The said agreemenT does noT relaTe To The suiT land, nor The'finding of The Trial CourT regarding agreemenT To sell enTered by The appellanT for The .-\ o,d ( suH' land wifh ano'rher person has been challenged. Therefore, when ifhe oppellanf is not in possession of fhe suif land and fi'rle has no? yet l l lbeen l “transferred in his favour, making an agreemen'r wii'h ano‘l’her l:person l for sale of lhe suif land for considera-rion itself is sufficien'f l l fro show fha'l’ balance of convenience does no‘r lie in his favour. 50 far hs irreparable loss is concerned, the sui'i' is for specific performance of +he confrac‘r, buf fhe appellan'r/plain'fiff is noi' in possession of The slEIi'F land, fherefore, in absence of injunci'ion, res'i'raining The respondent/defendant from aliena‘l'ing The properTy, no irreparable loss could be caused To The appellanT/plainTiff. . 9) The judgmen'i' rendered in Klnbf V: QI/ab (supra) is disTinguishable on facTs and from The judgmen‘i' rendered in MP Housig Board Vs Anil Kumar’Khiwani (supra) and Hindusfan Perm/earn Camarafian Llmifed Vs 5rilnan Narayan and anafher (supra). iT is clear ThaT granTing inTerim injuncTion is To lessen The risk of irreparable injury and injusTice which can noT be compensaTed for in money. Here in The insTanT case. neiTher balance of convenience lies in favour of The appellanT , nor in The fac‘i's and circumsTances he has To suffer irreparable loss. 10) In The resulT, The appeal is devoid of subsTance, Therefore, liable To be dismissed and is accordingly dismissed. a ParTies To bear Their onin cosTsll p Sd/— 11) l i V.K. Shrivastava 3 l Judge 28.09.2005 podma