IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.303 of 2007 Most.Tilia Devi, wife of Late Jamun Mahto, resident of mohalla Bhikhana Pahari, P.S. – Kadamkuan, District – Patna. ………… Plaintiff / Appellant. Versus 1. Om Prakash, Son of Sri Mukhlal Sah, resident of mohalla Bakerganj, Gola Road, P.S. – Pribahore, District – Patna. 2. Balmiki Singh, Son of Late Kedar Singh, resident of Panki Kothi, Nala Road, P.S. – Kadamkuan, District – Patna. Both persons holding registered Power of Attorney dated 16.08.2005 on behalf of Smt. Sandhya Sen and Smt. Minoti Gupta. ………… Defendants/ Respondents ----------- 07/ 25.08.2010 Heard the learned counsel for both the parties. This miscellaneous appeal is directed against the order dated 09.05.2007 passed by the Sub-Judge XI, Patna in Title Suit No. 02 of 2007 by which he has rejected the petition for injunction on the ground that there is no irreparable loss. The plaintiff filed a suit for specific performance of contract alleging therein that the defendant failed to perform his part of contract i.e. the subject matter of the suit for a consideration of Rs.5,50,000/- and out of which Rs.5,00,000/- has been paid and Rs.50,000/- was agreed to be paid at the time of the execution. However, subsequently, the plaintiff learnt that the defendant is going to sell the land to the other persons and is talking for 2 sale and the defendant is not ready to execute the sale deed as per the agreement and hence during the pendency of the suit a petition for injunction filed restraining the defendant from executing the sale deed and after considering the pleadings of the parties and the respective submission of the party the learned court below held that that the prima facie case and the balance of convenience may be in favour of the plaintiff but there is no irreparable loss and hence rejected the petition for grant of injunction. Learned counsel for the appellant, however, contended that though the prima facie and balance of convenience found in favour of the plaintiff but the injunction petition has been rejected on the ground of irreparable loss to the plaintiff. Learned counsel for the appellant contended that if the property is sold then he will at the complexity in the litigation and he may be put to irreparable loss. Learned counsel for the respondents, however, appeared and filed rejoinder asserting that the land has already been sold to the different person and denied the case of appellant about agreement to sell on payment of money or any power of attorney in favour of plaintiff 3 hence on the respective submission the question for consideration whether the appellant is entitled to get an order of injunction in his favour restraining the defendant from executing sale deed or under fact and circumstance of the case. However, the suit for specific performance of contract and the learned counsel for the appellant asserts that there is agreement for sale though denied by the defendant respondent however even if assuming that there is an agreement for sale it does not give right over the properties. However, under Section 53 A of the Transfer of Property Act gives a right to the appellant to file a suit for specific performance of contract and unless the plaintiff gets a decree of specific performance of contract followed with a sale deed executed by the defendant, plaintiff does not get any right over the property and hence having no right over the property he has not prima facie case. So far as balance of convenience concerned the plaintiff has got a remedy as he can get a decree for specific performance of contract against defendant and even with regard to the subsequent purchaser he will have the remedy to implead the subsequent purchaser in the suit and get a decree 4 against them. But unless the plaintiff appellant gets a decree for specific performance of contract and sale deed executed thereon he has no right over the property. Hence, the plaintiff has a remedy to get a decree for specific performance of contract and get a sale deed executed against the defendant respondent and subsequent purchaser and even has a remedy to get the damages for the amount paid with interest. However, if the injunction is granted in favour of plaintiff the defendant cannot be compensated if plaintiff lost the suit hence the balance of convenience does not lay in favour of the plaintiff for grant of injunction. Hence, since the plaintiff has no right over the property by contract for sale and hence has no prima facie case and the balance of convenience also not in his favour as discussed above and consequently no irreparable loss and hence I do not find any merit in this appeal. The appeal is dismissed. Kundan (Gopal Prasad, J.)