MADAN, J. - (1.) SURENDRA Kumar Baid, appellant herein who is defendant in the suit filed by Rajendra Kumar Baid the, plaintiff-respondent herein the challenged the order dt. 27. 10. 99 (impugned in the appeal) passed by Addl. District & Sessions Judge No. 2 Jaipur in Civil Misc. Application No. 70/98 (121/98) whereby the application under Order 39 Rules 1 & 2 C. P. C. filed by the plaintiff for granting interim injunction was allowed.
(2.) THE plaintiff filed a suit for Specific Performance of the agreement dated 15. 12. 1983 executed with the defendant-appellant regarding an immovable property, for recovery of its maintenance charges and permanent injunction in the Court of District Judge, Jaipur City, Jaipur on 30. 7. 98. Alongwith the plaint an application for grant of temporary injunction under Order 39 Rules 1 & 2 C. P. C. was also filed. THE said application was allowed by the trial Court vide order dt. 27. 10. 99 (impugned) restraining the defendant not to transfer, alienate or dispose of the property in dispute pending hearing and final disposal of the suit. THE relief sought for in the suit was for specific performance of the agreement in question for sale consideration of Rs. 40,000/- which the defendant is purported to have received from the plaintiff for handing over the peaceful possession of the property to the plaintiff. The total area of the property as the been indicated in the plaint is 131. 71 sq. metre, out of which 73. 33 sq. metre is the covered area while the remaining 58. 38 sq. metre is open. It has been averred in the plaint that on 15. 12. 83 on the basis of agreement of sale executed between the parties, the suit property was agreed to be sold by the appellant against the consideration of Rs. 40,000/- to the plaintiff. In para 14ga of the plaint it has been prayed by the plaintiff as under:- ...[VERNACULAR TEXT OMITTED]... Contrary to the prayer made as aforesaid in the plaint, in the application seeking relief of temporary injunction it has been prayed that the appellant be restrained not to transfer the land in question nor to dispossess its' occupants in any manner.
(3.) IN para 2 of the application filed under Order 39 Rules 1 & 2 CPC it has been further contended that the property in dispute had been purchased in the name of the defendant who was minor at the time of execution of the sale agreement. The property was registered in the office of Sub Registrar, Jaipur vide Registration No. 1776 on 17. 6. 74. On attaining the age of majority, the defendant decided to sell the property and since the plaintiff was his real elder brother, taking all the circumstances into view, he decided to execute the sale agreement in his favour on 15. 12. 83 against the sale consideration of Rs. 40,000/ -. IN the prayer clause it has been prayed in the application that the defendant be restrained not to transfer, sell or alienate the property in question to anyone else pending hearing ad disposal of the suit. In reply to the plaint, defendant controverted the aforesaid contentions of the plaintiff by specifically contending inter- alia that as on the date when the agreement was executed, the plaintiff was not having any concluded right in his favour. From the prayer made in the suit itself, it was apparent that the plaintiff was not in possession of the property in dispute and it is settled principle of law that no injunction can be granted in favour of a party who is not in possession of the property. The requirement of the provisions of Order 39 Rules 1 2 are not attracted to the instant case. Rules 1 & 2 CPC specifically stipulates, as under:- "1. Cases in which temporary injunction may be granted - Where in any suit it is proved by affidavit or (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to (defrauding) his creditors, (c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit. 2. Injunction to restrain repetitioner on or continuance of breach- (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, of any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. (2) The Court may be order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit. '' While assailing the property of impugned order, it was contended by the learned counsel for the defendant-appellant that the trial Court has gravely erred in not taking into consideration that it had acted contrary to the well settled principles of law in granting the relief of injunction in favour of the plaintiff who was admittedly not in possession of the property in suit as on the date when the suit was instituted. In this respect, reliance was placed by the counsel for the appellant on the ratio of following decisions:- Smt. Chandra Kumari vs. State and Ors. (1); The Agriculture Produce Market Committee Gondal and Ors. (2); Dwarikesh Sugar Industries Ltd. vs. Prem Heavy Engineering Works (P) Ltd. and Anr. 3. ;