Uttarakhand High Court
AO/342/2023 on 25 August, 2023
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AO No. 342 of 2023
Hon'ble Pankaj Purohit, J.
Mr. Siddhartha Shah, learned counsel for the
appellant.
2. Mr. Akshay Joshi, learned counsel for the
Caveator.
3. The appeal has been filed by the appellant, feeling
aggrieved by the judgment and order dated 30.05.2023,
whereby the application moved by the respondent-
plaintiff for temporary injunction under Order 39 Rule 1
and 2 CPC was accepted and the appellant-respondents
were restrained by way of a temporary injunction for not
creating any third party interest or charge upon the
property in-question.
4. Learned counsel for the appellant submits that the
plaintiff has filed a suit for mandatory injunction
directing the respondents to execute the sale-deed in
pursuance of the agreement to sale dated 02.03.2022.
5. It is further submitted by learned counsel for the
appellant that the suit for mandatory injunction itself was
not maintainable in view of Section 41 (h) r/w Section 10
of the Specific Relief Act, 1963 and instead of filing a
suit for specific performance of the agreement to sale, it
was couched as a suit for mandatory injunction.
6. It is again submitted by learned counsel for the
appellant that since no relief for permanent injunction
was prayed for by the respondent-plaintiff, therefore, the
order of temporary injunction granted by the trial court is
bad in the eyes of law and suffers from malice of being
beyond jurisdiction.
7. Learned counsel for the respondent-plaintiff
submits that so far as argument of filing a suit of
mandatory injunction in place of a suit of permanent
injunction is concerned, it is submitted by him that such
an argument is always open for the appellant before the
trial court and while deciding the present appeal, the
same would not be relevant.
8. From the order impugned, the finding recorded by
the trial court appears to be up to the mark, which comes
in para nos. 12 and 13 of the judgment that the question
regarding terms and conditions of the agreement to sale
was not complied with and as to whether which of the
party was at fault for not performing its part of contract
was to be examined, is a subject matter of evidence
before the trial court, which could be decided once the
evidence between the parties will be adduced.
9. So far as argument advanced by learned counsel
for the appellant, on the strength of a judgment of
Hon'ble High Court of Guwahati, Dipak Chandra Ruhi
Das Vs. Pradip Kumar Sarkar and Others (2021) 3
Gauhati Law Reports 71, that the prayer of temporary
injunction cannot be granted, if the prayer for permanent
injunction is not there in the suit, is totally misconceived
for the reason that the mandatory injunction is a species
of the permanent injunction. In this view of the matter,
this argument does not hold any water and the same is
hereby rejected.
10. Having heard the rival contention of the parties,
this Court is of the view that the finding recorded by the
trial court appears to be legally sound, and needs no
interference at this stage. Consequently, the appeal fails
and is hereby dismissed.
(Pankaj Purohit, J.)
25.08.2023
SK
