- (1.) SUIT No. 656 of 1997 was initiated before the learned Civil Judge, Senior Division, Allahabad by the petitioner against the private respondents 2 to 8 as defendant Nos. 1 to 7. In the suit, the following prayers were made:- " (A) That the defendants Nos. 4 to 7 be restrained by means of permanent injunction from making any construction over the property in suit or from changing the nature of the suit property. (B) That the cost of the suit be allowed to the plaintiff against the defendants. (C) Any other relief which the Court deems fit be awarded to the plaintiff against the defendants. "
(2.) ALONG with the suit, an application for temporary injunction was filed on which an interim injunction was allowed on 17-12-1997. Against the said order, a Misc. Appeal No. 382 of 1997 was filed by the defendants Nos. 6 and 7. The appellate Court had granted an interim order of stay of operation of the interim order granted by the learned trial Court. Against the said interim order dated 23-12-1997 passed in the appeal, the petitioner had moved a writ petition being Civil Misc. Writ Petition No. 160 of 1998. The writ petition was disposed of by an order dated 12-1-1998. In the said order it was directed that the injunction application shall stand disposed of in terms of the appellate order and the opposite parties shall not be allowed after disposal of the appeal to contest the application for temporary injunction in the trial Court. Pursuant to the said order, on the basis of affidavits and counter affidavits filed in the appeal, the injunction matter was disposed of by an order dated 20-1-1998 refusing the injunction in favour of the plaintiff-petitioner herein while allowing the appeal filed by the defendants Nos. 6 and 7. It is this order which has since been challenged in this petition. A preliminary objection as to the maintainability of the writ petition under Article 226 of the Constitution, however, was sought to be raised but Mr. A. S. Rai, learned counsel for the petitioner pointed out that the cause title of the petitioner describing the petition one under Article 226/277 of the Constitution and he prays for treating the application as one under Article 227 of the Constitution, therefore, it is not necessary to go into the said question. Mr. Rai had assailed the said order on several grounds and elaborated his argument. Erudition in the argument is a matter of appreciation which I cannot but record as far as Mr. Rai is concerned who almost had carried me away with him. Mr. Rai had pointed that the learned appellate Court while deciding the appeal itself had purported to hold that the suit is not maintainable and that the petitioner had abandoned his agreement on which he claims his right and that the lower appellate Court has not considered the question of prima facie case in its proper perspective and had omitted to consider the question of balance of convenience and inconvenience, ignoring the said two propositions of law as has been enunciated by the various High Courts and the Hon'ble Supreme Court in so many decisions. He had also submitted that the learned lower appellate Court had misappreciated the various provisions of law particularly those of Sections 3, 40 and 62 of the Transfer of Property Act, Section 91 of the Indian Trust Act, Sections 3 and 41 (h) of the Specific Relief Act and had altogether confused the propositions and had purported to pre-determine the issue which could not have been done at this stage. According to him even if prima facie case is not made out within the meaning of Order 39, Rules 1 and 2 even then in exercise of inherent jurisdiction under Section 151 of the Code of Civil Procedure, in the facts and circumstances of the case, he should have exercised his discretion. He contended further that in the present case, there was an earlier agreement for sale in favour of the plaintiff. Despite having knowledge of the said agreement, the defendants Nos. 6 and 7 had purchased the property and therefore the Court was wrong in allowing the defendants to continue with the construction which will complicate the issue in the suit and put the plaintiff in difficulties by compelling him to file another suit for seeking demolition that might be raised in the property. Thus, he contends that the facts and circumstances were as such that it was a fit case for grant for interim order. Inasmuch as the question that has been decided by the appellate Court could not have been decided at this stage on the basis of the affidavits. The plaintiff having made out a triable issue which was sufficient for grant of injunction even if the suit may ultimately fail, it was a fit case for grant of interim order.
(3.) MR. W. H. Khan ably assisted by Shri Singhal, learned counsel appearing for the respondents, on the other hand, contended that the findings arrived at by the lower appellate Court are only tentative findings for the purpose of arriving at a prima facie case confined to the question of grant of injunction and it has nothing to do with the ultimate result of the suit which is open to be decided on the basis of evidence that might be led by the parties. He contends that in view of Section 52 of the Transfer of Property Act even if the defendants continue with the construction, in that event, the construction that has been made after the suit is instituted would be hit by lis pendence and therefore it will not prejudice the plaintiff. He further contends that the learned appellate Court has come to certain finding which cannot be interfered with or altered in revisional jurisdiction by this Court. He also contends that the injunction application is decided on the basis of affidavits and only for the purpose of deciding the question of injunction. He also refers to the findings of the appellate Court with regard to the merit of the case particularly in respect of possession and the abandonment of the agreement and points out that those are tentative findings and that prima facie those findings can be supported by reasons and should not be altered at this stage. According to him, the plaintiff was unable to make out a prima facie case on the basis of the pleadings as well as the affidavit in support of the application for injunction as has been decided by the lower appellate Court. According to him the prayers made in the plaint sufficiently indicate that the plaintiff was not serious in his approach and he is not seeking to enforce the specific performance that too he is asking for an injunction long after a period when the specific performance of the agreement stood barred by limitation. He also points out that the said agreement which was entered in the year 1991 was found to have been abandoned on the basis of the finding that he, subsequently, purchased another property from the same vendor in 1992 in which the amount paid in terms of 1991 agreement appears to have been adjusted in the 1992 sale deed. According to him since the plaintiff was unable to make out a prima facie case, according to the view taken by the learned appellate Court, and that the balance of convenience and inconvenience have been found in favour of the defendants by the appellate Court and that the question of irreparable loss and injury could be taken care of under Section 52 of the Transfer of Property Act, it is no more open to this Court to interfere with the lower appellate Court order. He also submits that in case the plaintiff succeeds in that event the defendants Nos. 6 and 7 cannot claim any equitable right simply because the construction has been completed during the pendency of the said suit. Appreciation of the argument of Mr. Khan also requires mention.;