Om Prakash, D.K.Trivedi - (1.) HEARD counsel for the appellant.
(2.) THIS appeal is filed challenging the impugned order dated 22.1.1997 passed by learned IIIrd Addl. Civil Judge, Senior Division, Ghaziabad. The case of the appellant is that defendant No. 2 in whose favour power-of-attorney was executed by defendant No. 1, entered into an agreement to sell with regard to suit property with the plaintiff but the defendants in disregard of the said agreement entered into agreement to sell with another party. The question is, on these facts, which relief can be claimed by the appellant. The appellant filed a suit for permanent injunction only and made an application for interim injunction which the trial court declined to grant saying that on the facts and in the circumstances of the case, the appellant failed to claim efficacious relief inasmuch as no relief for specific performance of the agreement to sell is sought and, therefore, suit for injunction alone was not maintainable and for that reason, no ad interim injunction can be granted to the appellant.
(3.) SECTION 41 (h) of the Specific Relief Act, 1963 clearly provides that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. On the facts of the case, efficacious relief will be specific performance of the agreement to sell. Even if the injunction sought by the appellant is granted, the appellant will have to file a suit for specific performance since he was not in possession of suit property. Therefore, the law required that the appellant should have filed a suit claiming efficacious relief of specific performance of agreement to sell which the appellant failed to file and, therefore, the ad interim injunction sought by the appellant was rightly refused by the trial court. The appeal is, therefore, dismissed in limine.;