IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.232 of 2009 Om Prakash Sharma, Son of Shyam Sunder Sharma, Resident of village – Gurudwara Road, Police Station – Kotwali, District – Bhagalpur. ……. Plaintiff / Appellant. Versus Badri Ram Marwari, Son of Late Budhu Ram Marwari, R/V. Sangrampur, P.S. – Sangrampur, District – Munger. …….. Defendant / Respondent ----------- For the Appellant :- Mr. Subodh Kr. Jha, Advocate. Mr. Bidhan Chandra Jha, Advocate. For the Respondent :- Mr. Dhrub Narayan, Sr. Advocate. Mr. Sri Ballabh Narayan, Advocate. Mr. Devi Das Srivastava, Advocate. 10/ 06.08.2010 Heard learned counsel for both the parties. This miscellaneous appeal is directed against the order dated 21.11.2008 passed by the learned IVth Sub Judge, Bhagalpur in Title Suit No. 191 of 2005 by which he has rejected the petition for injunction under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure holding that the plaintiff has got neither the prima facie case nor the balance of convenience or irreparable loss. Learned counsel for the appellant, however, contended that appellant filed a suit for specific performance of contract making out a case that by an agreement entered into between the appellant and respondent on 10.12.2003 by way of an affidavit to sell the land by 31st December, 2004 and the part of the 2 consideration money of Rs.2,00000/- was paid out of the total consideration money of i.e. Rs.17,00000/- agreed upon between the parties. The plaintiff requested in April 2004 to execute the sale deed for the transfer of the land as agreed upon but the respondent did not and thereafter on the expiry of the period, a legal notice was issued followed by institution of a suit for specific performance of contract. During the pendency of the suit for specific performance of contract a petition under Order XXXIX, Rule 1 and 2 of the C.P.C was filed alleging therein that the respondent wanted to sell the land and hence be restrained under Order XXXIX, Rule 1 and 2. However, learned lower court after hearing the parties rejected the petition and against the said order this miscellaneous appeal has been preferred. However, in a case for injunction the principles to be taken into consideration are well settled as to whether the petitioner has got the prima facie case, the balance of convenience and irreparable loss in his favour. The case of the petitioner is that the defendant had contracted to sell the land to the plaintiff. However, an agreement to sell entered into between the parties does not 3 give any right to the plaintiff with regard to the land in suit that is contract to sell do not create any interest in the property. However, it only gives a right to file a suit for specific performance of contract and hence unless the appellant gets a decree for execution of specific performance of contract and the sale deed is executed, he cannot get a right over the suit land. However, so far the balance of convenience is concerned, if the injunction is granted and the suit gets dismissed, the plaintiff will lose nothing but the defendant will lose for not getting benefit out of the land which cannot be compensated and if the plaintiff loses he may get the damages and may claim even property by adding the subsequent purchaser and getting a decree against him and even if the property is sold, he may get a decree against the subsequent purchaser. The plaintiff also does not have any irreparable loss as if plaintiff succeeds then he can get the land or money as damages to non performance of specific performance of contract and hence taking into consideration the facts itself, neither prima facie case nor balance of convenience or even irreparable loss in favour of the plaintiff and hence I do not find any illegality or irregularity in the order 4 passed by the learned lower court. However, the lower court is directed to expedite the suit and dispose of preferably within a year taking the case on day to day basis and any adjournment prayed by the party be subjected to Order XVII of the Code of Civil Procedure. Accordingly, this appeal is dismissed. Kundan (Gopal Prasad, J.)