- (1.) Heard learned Counsel for the Appellants against order refusing temporary injunction. In respect of a vast area of land, Plaintiff has filed a suit for perpetual injunction claiming that after acquisition of a portion of the area, balance is in his possession, where the Defendants are making an attempt to make constructions. in the suit, Plaintiff prayed for temporary injunction.
(2.) A suit for relief of perpetual prohibitory injunction requires disclosure of facts to satisfy the requirements of Section 38 of the Specific Relief Act and absence of prohibition contained in Section 41 thereof. In such a suit, court has a discretion which is to be exercised judicially for grant of perpetual injunction as the language of Section 38 provides.
(3.) In the present case, as is revealed, Plaintiff claims the land to be his whereas Defendant is attempting to raise construction on the land claiming the same to have been acquired. in such a dispute, Plaintiff ought to have sought for declaration of his title and consequential injunction, if at all he is in possession. Filing of a mere suit for perpetual injunction is a conduct of Plaintiff to avoid the normal course and this conduct prohibits assistance of the court to get the relief under Section 41(i) of the Specific Relief Act. Merely because precedents to the effect that court can go into question of title of portion in absence of a specific prayer for declaration, Plaintiff ought not to avoid the relief which he could have sought for. Since trial court is to consider this conduct of the Plaintiff to examine to grant perpetual injunction, we express no opinion at this stage, since Plaintiff can seek amendment of plaint at a later stage of the suit. However, while considering prima facie case, this aspect is to be kept in mind. It is seen from the records filed before us that trial court was not satisfied about the identity of the land belonging to the Plaintiff for which a Commissioner has been appointed, who has not yet submitted his report. in such situation, it cannot be said that Defendant is attempting to construct on the land in possession of the Plaintiff which would be required for considering balance of convenience.;