IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.660 of 2009 1. ASHA DEVI W/O SRI SITARAM SINGH @SITARAM SHARMA R/O VILLAGE KATHPUR P.S. GHOSI, DISTRICT- JEHANABAD. AT PRESENT HOUSE NO. F.144, P.C. COLONY, KANKERBAGH, PATNA 800020. 2. SATYADEO S/O LATE BINDU PRASAD SINGH AND HUSBAND OF LATEKAMLA DEVI, R/O VILLAGE ADLA P.S. NAUBATPUR, DISTRICT-PATNA. AT PRESENT, RENTAL FLAT NO. 56, MOHALLA KANKARBAGH, PATNA-800020. ………………..PLAINTIFF-APPELLANTS. Versus 1. SRI RAJ KUMAR GUPTA @ RAJ KUMAR SAO S/O LATE BADRI NARAYAN SAO, R/O MOHALLA PRITHVIPUR ENGLISH, P.S. KANKERBAGH DISTRICT-PATNA. AT PRESENT IN P.R.D. FLAT NO. 100 EAST DINKARGOLAMBAR NALA ROAD, DISTRICT- PATNA. 2. DILIP KUMAR GUPTA S/O LATE BADRI NARAYAN SAO. 3. VIJAY KUMAR GUPTA S/O LATE BADRI NARAYAN SAO. 4. RAJESH KUMAR GUPTA S/O LATE BADRI NARAYAN SAO. ALL R/O MOHALLA PRITHVIPUR ENGLISH, PS.S. KANKERBAGH DISTRICT-PTANA. AT PRESENT R/O GOLAKPUR MEHENDRU P.S. PIRBAHORE DISTRICT- PATNA ……………..DEFENDANTS/RESPONDENTS 1ST SET. 5. RASHMI KUMAR @ RASHMI GUPTA W/O LATE PRAMOD KUMAR GUPTA, R/O MOHALLA GOLAKPUR, MAHENDRU (ON THE EAST ROAD OF ENGINEERING COLLEGE GOING TOWARDS PATNA LAW COLLEGE), PATNA-6. ...…….PROPOSED DEFENDANT/RESPONDENTS 2ND SET. 6. SMT. RAMITA JHA W/O SRI DAYANAND JHA, R/O VILLAGE PALIGARH P.S. BENIPATTI, DISTRICT-MADHUBANI. 7. SMT. RAMKALI DEVI D/O LATE SHIV NANDAN SINGH R/O MOHALLA ASHOK NAGAR, POST LOHIA NAGAR, P.S. KANKERBAGH, DISTRICT PATNA. W/O SRI RAM NANDAN SINGH, MUNSHI OR BROKER R/O MOHALLA ASHOK NAGAR, P.S. KANKERBAGH, DISTRICT-PATNA-20. 8. SMT. SITA SONE W/O SRI RAJ NARAYAN SONI R/O VILLAGE+ P.S. MARHARWA , DISTRICT –CHAPRA. AT PRESENT A-LENKAR JEWELLERS NEAR MUKESH KIRANA STORES, TEMPO STAND, SALIMPUR ROAD P.S. KANKERBAGH, DISTRICT-CHAPRA. 9. PREM KUMAR VISHWAKARMA S/O LATE LAKSHMIJEE VISHWAKARMA R/O MOHALLA SAHEBGANJ SONARPATTI, POLICE STATION- TOWN P.S. CHAPRA, DISTRICT CHAPRA AT SARAN. AT PRESENT UNITED BANK OF INDIA, KANKERBAGH BRANCH, D. SECTOR, PATNA. 20. 2 10. SMT. SONIA JHA W/O SRI BINOD KUMAR JHA, R/O VILLAGE+POST KANHAULI P.S. KHANNAULI, DISTRICT- MADHUBANI. AT PRESENT SEWA SADAN, TARKESHWAR PATH P.S. KANKERBAGH, DISTRICT-PATNA, C/O SRI BINOD KUMAR JHA, WRITER CONSTABLE, DEPUTY SUPERINTENDENT OF POLICE SADAR, DISTRICT- PATNA. 11. RITU DEVI W/O SRI RAMLESH PRASAD SINGH, R/O VOLLAGE KATRIDIH POST+ P.S. KATRISARAI, DISTRICT- NALANDS. …..………………….PROPOSED DEFENDANTS. ……….DEFENDANTS/RESPONDENT 3RD SET. For the appellants…………………………Mr. Shashi Shekhar Diwadi Mr. Ramakant Sharma For the respondents…………………….. Mr. V. Nath Mr. Ashok Kumar Mr. Satish Kumar Mr. Sandip Singh ----------- 13 06-08-2010 This Miscellaneous Appeal is directed against the order dated 15-10-2008 passed by In-charge Sub-Judge-I, Patna, in Title Suit No. 390 of 2008 by which he has rejected the petition for granting injunction under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure read with section 151 of the Code of Civil Procedure. The plaintiffs filed a suit for specific performance of contract entered into on 24-11-1992 and according to the case of the plaintiff the contract was entered for sale of 4 Kattha and 2 Kattha of the land and it was stipulated according to the contract that the Khatal will be removed and the permission will be taken from the Urban Land Department but neither the Khatal was removed nor the 3 intimation regarding permission to sale was taken. The case of the plaintiffs is that the permission was not even tanker. The case of the plaintiffs is that the contract was made on 24-11-1992 and according to the term of the contract the sale deed was required to be registered within 20 days from the date of the permission taken and the permission was not even taken in the year 1996 and was not intimated to the plaintiffs and the intimation was given by the lawyer on 6- 11-1998 and the suit has been filed in the year 2008. However, during the pendency of the suit an injunction petition was filed by the plaintiff under order 39 Rule 1 C.P.C. stating therein that the defendants who are trying to sell the suit land, be restrained. Defendants filed their show cause stating the fact and taking the plea that they have already sold the land by registered sale deed and even there is a possession of the purchaser and after considering the pleading of the parties and respective submissions, the Trial Court rejected the petition filed under order 39 Rule 1 C.P.C. by the impugned order. It was held that Section 53A of the Transfer of Property Act is not applicable and rejected the plea keeping the suit property secured, so that the decree passed by the Court be made effective and even refused to grant status-quo, in view of the fact that the property has already been transferred and the transferees are residing in the house after constructing 4 house and the transferee has not been made party, rejected the petition stating that the injunction cannot be granted. The learned counsel for the appellant, however, contended that the property has been sold and there is construction. However, a supplementary affidavit has been filed stating therein that the vigilance has taken action against the builder and the building on the suit property has been ordered to be demolish and hence, contended that the probability is that the building may be demolished and hence the injunction can be granted to maintain status quo that no construction be made thereupon so that appellant in case get decree may avail the fruit of decree. Learned counsel for the appellant further contended that against the contract entered between the parties for sale of 4 Kattha and 2 Kattha of the land and after the contract entered Rs. 3 lakh 92 thousand and odd has been paid for contract to sale 2 Khatta and Rs. 3 lakhs and odd has been paid with regard to the contract to sell 4 khatta of the land from defendant No. 1 and, hence about Rs. 7 and half lakhs of amount have been already paid and further contended that if the appellants are allowed to sell the property and the injunction is not granted, they may not be able to get the fruit of the decree or whatever decree they will get will be blank paper and they cannot get the suit land i.e. the fruit of decree. It has further been contended that 5 they have got a right to get a decree for specific performance of the contract under section 53 A of the Transfer of Property Act and hence has got right and if the injunction is not granted then they may not get the fruit of decree and hence placed reliance upon decision of 2004 (8) SCC Page 488 (Maharwal Khewaji Trust v. Baldev Dass) and decision reported in 2005(1) BBCJ page IV-123 (Maharwal Khewaji Trust v. Baldev Dass). However, both the citations of the same case bearing civil appeal No. 6792 of 2004 between the same party and hence same judgment. Learned counsel for the respondent, however, contend that it is a case of specific performance of contract and merely contract for sale between the parties does not give any right in the suit property with the plaintiff and hence plaintiff having no right over the suit property has neither a prima facie case nor the case of the plaintiff that he has in possession and further neither the balance of convenience nor irreparable loss lies with the plaintiff to get the relief. Learned counsel for the respondent relies upon the decision reported in 1998(1) PLJR page 263 (Fool Kumari Devi v. Krishna Deo Upadhya) and 1998(2) PLJR page 120 (Lallan Prasad v. Parmeshwar Singh) and contended that the agreement of sale does not create any interest in the property but only gives right to bring suit claiming equitable right of purchase and the balance of convenience and 6 irreparable loss lies in favour of the defendant respondent as in case of refusal to grant injunction, the plaintiffs have nothing to lose even if they finally succeed but on the other hand defendant multiplier loan immediately if injunction is granted and may not be adequately compensated if the suit is dismissed. Hence on the above submissions of the parties the question for consideration whether the appellants have got a prima-facie case and balance of convenience and irreparable loss. However, the suit is for specific performance of contract and the contract for sale does not give any right in the property and it only creates right on the person who has a right to file a suit for specific performance of the contract, but the plaintiffs cannot claim any right title interest in the property till the suit of Specific Performance is decreed and the sale deed is executed by the defendant in compliance of the decree. However, so far the balance of convenience is concerned, if the injunction is granted then there will be loss to the defendants that they will not be able to construct and take benefit of the land. However, if the plaintiffs succeed they may well be compensated either in terms of money or they may get a decree even against the purchaser in accordance with law and so far as irreparable loss is concerned, there is irreparable loss which can not be compensated in terms of money, if the defendants are 7 restrained, when suit dismissed hence under the facts and circumstances defendant may suffer if the suit is dismissed in case injunction is granted and so balance of convenience is in favour of defendants. In the facts and circumstances, admittedly the plaintiffs are not in possession of the land and the land has already been transferred and there is a construction over the land by the transferee. The contract is of the year 1992 and the suit has been filed in 2008 and a supplementary affidavit has been filed that there is an order of demolition. However, it has not been stated that the house has been demolished or not. However, the learned counsel for the appellant has relied upon the decision reported in AIR 2004 SC 488 which is a case with regard to a suit for possession of the property balancing the ratio decided is not applicable as that is not a case for suit for specific performance of contract. In this case the learned court below has considered the principles of injunction, the prima facie case of balance of convenience and irreparable loss. However the facts and circumstances of that case reported in 2004 SCC 488, it was ordered to maintain the status quo but it cannot be applied in fact and circumstance of the present case on facts and nature of the suit is quite different. However, the decision relied upon by learned counsel for the respondent is specific on the point 8 and well applicable to the facts and circumstances of that case but taking into consideration the facts and circumstance of present case where as the ratio decided in 2004 (8) SCC is not applicable. In the present facts and circumstances the plaintiffs have neither prima facie case nor the balance of convenience nor irreparable loss to. Hence, I do not find any merit in appeal and hence appeal is dismissed. S.P. (Gopal Prasad, J.)