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Devi Prasad Singh, J.—Present writ petition has been filed against the impugned order dated 22nd of January, 2005 passed by the IVth Addl. District Judge, Lucknow thereby allowing the appeal filed under Order 43, Rule 1 of the Code of Civil Procedure. The temporary injunction granted by the trial Court in the suit for permanent injunction has been vacated by the learned appellate Court. Feeling aggrieved, plaintiffpetitioner has filed the present writ petition.
The petitioner is a Housing Society constituted under U.P. Cooperative Societies Act 1965. Plaintiffpetitioner used to purchase land and proceed to resale the same by way of plotting to need persons for the constructions of houses. According to the petitioners'' counsel, petitioner had entered into a registered agreement of sale for plot No.247 measuring 2 bigha 12 biswa 12 biswansi, situated at village Mallpur, Pargana, tahsil and District Lucknow. Admittedly the land in question was recorded in the name of one Nattha son of Tulai. Petitioner had entered into the agreement dated 4th of February, 1986 with recorded tenure holder Sri Nattha. Copy of the registered agreement to sale has been filed as Annexure No.4 to the writ petition. A perusal of the registered agreement shows that Nattha had agreed to sell the entire area of 2 bigha, 12 biswa and 12 biswansi of plot No.247 to the petitioner @ Rs. 18,000/ per bigha i.e. against the total cost of Rs.2,10,400/. Para 6 of the agreement provides that the possession of the land in question shall to be not delivered to the plaintiffpetitioner. But the petitioner was permitted to level the land and also permitted to proceed with the plotting of the land with intention to sale the same to the prospective purchasers. The agreement further shows that �time is not the essence of contract�. The agreement does not contain any provision or clause which may confine its execution within a particular period.
In pursuance to the aforementioned agreement, a registered sale deed dated 16th of February, 1987 was executed by Sri Nattha. The copy of the registered sale deed dated 16th of February, 1987 has been filed as Annexure No.5 to the writ petition. A perusal of the aforesaid sale deed shows that it was executed only for 1 bigha of land out of 2 bigha, 12 biswa and 12 biswansi. A perusal of sale deed further shows that the area of 1 bigha of land has not been specified with boundaries.
Admittdly, in pursuance to the aforementioned sale deed, petitioner''s name was mutated in the revenue record. Initially the mutation was done for the entire land. But later on when a revision was filed by the defendants, order of mutation was stayed by the Board of Revenue. The copy of the order passed by the Board of Revenue has been filed as Annexure No.SCA (1) to the Short Counter Affidavit. It appears that after the execution of the sale deed only to the tune of 1 bigha of land, Nattha expired and after his death, the names of his sons namely Maiku Lal and Gomti Prasad were entered into the Revenue Records.
In para 12 of the Writ petition, it has been pleaded that Maiku Lal and Gomti Prasad, sons of late Nattha had executed an unregistered sale deed dated 17th of august, 1992 in favour of one Adarsh Cooperative Housing Society Ltd. copy of the unregistered sale deed dated 17th of August, 1992 has been filed as Annexure No.8 to the writ petition. The said adarsh Cooperatie Housing Society on its own transferred the area of 1 bigha and 10 biswas of land of khasra of plot No.247 in favour of opposite party No.2 through the registered sale deed dated 5th of April, 1999. The copy of the sale deed executed by Adarsh Cooperative Housing Society Ltd in favour of M/s Shahmeena Sahkari Avas Samiti Ltd (Opposite party No.2) has been filed as Annexure No.9 to the writ petition.
Under the above facts and circumstances when the opposite party No.2 or its associates had allegedly tried to encroach over the land in question, petitioner has filed a suit for permanent injunction against the respondent No.2. Petitioner had also filed an application for temporary injunction under Order 39 Rule 1 & 2 of the Code of Civil Procedure. The trial Court had granted temporary injunction vide order dated 31st of May, 2001, copy of which has been filed as Annexure No.10 to the writ petition. By the said order, trial Court had directed the parties to maintain statusquo and further directed the defendants to file written statement. Feeling aggrieved with the order passed by the trial Court, an appeal was filed by the defendant which was allowed by the impugned order. While assailing the impugned order, it was submitted by the petitioner''s counsel that in view of the registered agreement to sale dated 4th of February, 1986, Sri Maiku Lal and Sri Gomti Prasad, sons of Sri Nattha were not entitled to transfer the land in question in favour of Adarsh Cooperative Housing Society Ltd. It has been further submitted by the petitioner''s counsel that otherwise also since Maiku Lal and Gomti Prasad had transferred the land by unregistered sale deed in favour of Adarsh Cooperative Housing Society Ltd. in view of the provisions contained in registration Act, neither the Adarsh Cooperative Housing Society Ltd. nor the defendantrespondent No.2 i.e. M/s Shaheena Sahkari Avas Samiti Ltd. have got any right or title over the land in question. The unregistered sale deed is a mere piece of a waste paper and it does not extend any right to the purchaser.
The further submission of petitioner''s counsel is that since in pursuance to the registered agreement, only 1 bigha of land was transferred by late Sri Nattha, his legal heirs i.e. Sri Maiku Lal and Sri Gomti Prasad are liable to transfer the remaining land in favour of the petitioner. That is why, a suit for permanent injunction was filed to restrain private respondent from encroaching over land in question. Accordingly, the submission is that opposite party No.2 has got no right to claim for the possession over the land in suit or raise any construction thereon either on its own motion or through its associates or proposed purchasers.
While defending the impugned order, learned Counsel for the respondents No.2 submits that while granting the temporary injunction, the trial Court had assumed that the entire land has been transferred in favour of the plaintiff on account of ambiguous pleading in the plaint and entry in the revenue record. The conduct of the Tahsildar was not upto the mark while recording the entire land in petitioner''s name. The suit in question is not maintainable on account of nonjoinder of necessary parties. Petitioner should have filed a suit for partition as boundaries of the area showed to the petitioner by Sri Nattha has not been mentioned in the sale deed. The possession was not delivered by Sri Nattha at the time of the agreement in view of the provisions contained in Section 53 and 53A of the Transfer of Property Act. Learned Counsel for the respondents have proceeded to submit as under:
Plaintiffpetitioner has misrepresented in the plaint as well as application of temporary injunction that he had acquired the title of the property in suit by way of sale deed dated 16th of February, 1987. Petitioner bad committed fraud.
Plaintiffpetitioner has deliberately misrepresented the fact that he was having the title and right over the land and was in possession of the entire property measuring 2 bigha, 12 biswas and 12 biswansi. It was wrongly pleaded that the area of land in question was delivered to the petitioner by Sri Nattha.
The finding of facts recorded by the appellate Court ought not be interfered and interference by High Court on merit does not call for. The plaintiff has to prove his case and no support can be taken from the weakness of the defendant. If plaintiff fails to prove his pleadings, suit deserves to be dismissed.
Since the plaintiff has not acquired the entire land by possession in pursuance to the agreement dated 4th of February, 1986 coupled with the registered sale deed dated 16th February, 1987, the plaintiff has no right on title over the suit in question or also have no right to initiate proceedings.
Plaintiffpetitioner had a better and more efficacious remedy to file a suit for Specific Performance of contract against the transferors and the same having become time barred, the plaintiffpetitioner has filed the suit for permanent injunction. Respondents'' counsel submits that in view of the provisions contained in Section 41 (e) of the Specific Relief Act, the agreement can not be affirmatively enforced by a decree of Specific Performance and accordingly, it can not be enforced negatively by issuing an injunction. On account of availability of equally alternative efficacious remedy in view of Section 41(h) of the Specific Relief Act, injunction can not be granted. Conduct of the plaintiff disentitles him from any relief in view of provision contained in Section 41(i) of the Specific Relief Act.
Further submission of respondent''s counsel is that petitioner had filed the suit without impleading Maiku Lal and Gomti as defendant, heirs of Nattha who are the necessary parties and only they can show their right to transfer the remaining land in favour of Adarsh Cooperative Housing Society Ltd. the further submission of the respondents'' Counsel is that High Court can not dispose of the writ petition without impleading the persons who are vitally affected by its judgment.
Learned Counsel for the Respondent No.2 has relied upon the various judgments reported in 1987 ALJ 137, Raj Kumar Kapoor v. Civil Judge Kanpur, 1986 ALJ 1130, Darul Ullum Islamia v. Civil Judge, Basti, 1987 ALJ 870, Mahadevi v. Civil Judge, Farrukhabad, 2004 ACJ 392, Virendra Kumar Gupta v. State of U.P., (1994) 1 SCC 1, S.P. Chengalvarya Naidu v. Jagannath, (1993) 3 SCC 161, Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1995) 6 SCC 544, Chandrashekhar Gajanan Bhogankar v. Yeshwant Dhondi Potdar, (1998) 7 SCC 118, State of Bihar v. Radha Krishna Singh, (1996) 7 SCC 690, Patel Natwarlal Rupji v. Kondh Group Kheti Vishayak, AIR 1987 SC 1492, Terene traders v. R.Famesh Chandra Jamnadas, (1987) Supp. SCC 161, Bruce v. Sliva Raj and others, AIR 1951, 426, Dewan Chand v. Union of India, (1988) 2 SCC 77, Sunil Kumar v. Ram Prakash, (1976) 4 SCC 719, Municipal Corporation of Delhi v. Suresh Chandra Jaipuria, (1992) 2 SCC 524, Ramesh Hirachand Kundamal v. Municipal Corporation of Greater Bombay and (1984) 4 SCC 251, Prabodh Verma v. State of U.P.
On the other hand, petitioner''s counsel admits that while exercising writ jurisdiction under Article 226/227 of the Constitution of India, merit of the suit or case should not be looked into. Since the question relates only to the grant of the temporary injunction, the present controversy should be disposed of by considering 3 (three) ingredients as per the settled law, namely prima facie case, balance of convenience and irreparable loss. The further submission of the learned Counsel for the petitioner is that who should be impleaded as party in the suit or whether the civil Court had got jurisdiction or not to issue permanent injunction and whether the suit is maintainable, all these questions can be considered only by the trial Court after framing issues and on the basis of evidence led by the parties.
Learned Counsel for the petitioner has relied upon certain judgments reported in 2002 (20) LCD 338, Smt. Shakira Khatoon Kazmi and others v. State of U.P. and Others, 2002(20) LCD 491, Shrimant Shamrao Suryavanshi v. Pralhad Bairoba Suryavanshi, 1997 (15) LCD 263, M/s Anamallai Club v. The Govt. of Tamil Nadu and others, 1999 (17) LCD 1301, Nagar Palika Parishad and another v. Irshad Ali, 1993(11) LCD 399, Budhi Ram v. 2nd Addl. Distt. Judge and AIR 1989 Supreme Court 2097, Krishna Ram Mahale (dead) by his LRs. v. Mrs. Shobha Venkat Rao.
Now, the nutshell submission of petitioner''s counsel is that on account of petitioner''s long standing possession, opposite parties have got no right to interfere with the land in question. Petitioner''s counsel further submits that where the petitioner is in settled possession of the property, even on assumption that he had not acquired the possession of the property in accordance to law, he can not be dispossessed by the owner of the property or by defendant except by the course of law. According to petitioner''s counsel, defendantrespondent No.2 does not have got any right to claim right or title over the land in suit. His claim is based on the registered sale deed dated 5th of April, 1999 executed by the Adarsh Cooperative Housing Society. Since, Maiku Lal and Gomti Prasad had transferred the land by way of execution of an unregistered sale deed, hence the subsequent registered sale ded dated 5th of april, 1999 is a void document and does not create any right I favour of the defendantrespondent No.2.
In pursuance to the provisions contained in Order 39 Rule 1 of the Code of Civil Procedure, trial Court is competent to pass the order to provide appropriate safeguard to the plaintiff, so that he may not suffer from irreparable loss and injury subject to condition that primafacie, case and balance of convenience lies in favour of the plaintiff. An injunction can be granted not only on the ground provided by the rule, but on other grounds also for the ends of justice.
Hon''ble Supreme Court in a case reported in AIR 1962 Supreme Court 527, Manohar Lal Chopra v. Rai Bahadur Rao Seth Hiralal, held that power of competent Court is not only to flow from Order 39 Rule 1 and 2 of the Code of Civil Procedure but also Section 151 of the Code of Civil Procedure which relates to inherent power to make necessary the order in the interest of justice. For convenience, relevant portion from Manohar Lal Chopra case (supra) is reproduced as under:
�(18). There is difference of opinion between the High Courts on this point. One view is that a Court cannot issue an order of temporary injunction if the circumstances do not fall within the provisions of Order XXXIX of the Code: Vardacharlu v. Narsajulu v. Narsimha Charulu, AIR 1926 Mad 258; Govindarajulu v. Imperial Bank of India, AIR 1932 Mad 180; Karuppayya v. Ponnuswami, AIR 1933 Mad 500(2) Murugesa Mudali v. Angamuthu Mudali, AIR 1938 Mad 190 and Subramartian v. Seelarama, AIR 1949 Mad 104. The other view is that a Court can issue an interim injunction under circumstances which are not covered by Order XXXIX of the Code, if the Court is of opinion that the interest of justice require the issue of such interim injunction; Dhaneshswar Nath v. Ghanshyam Dhar, AIR 1940 All 185; Firm Bichchha Ram Baburam v. Firm Baldeo Sahai Surajmal, AIR 1940 All 241; Bhagat Singh Jagbir Sawhney, AIR 1941 Cal 670 and Chinese Tannery Owners'' Association v. Makhan Lal, AIR 1952 Cal 560. We are of opinion that the latter view is correct and that the Court have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order XXXIX, CPC. There is no such expression in Section 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order XXXIX or by any Rules made under the Code. It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may a rise in future litigation and consequently for providing the procedure for them. The effect of the expression �If it is so prescribed� is only this that when the rules prescribed the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interest of justice, but is merely to see whether the circumstances of the case bring it within the prescribed Rule. If the provisions of Section 94 were not there in the Code, the Court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. No party has a right to insist on the Court''s exercising that jurisdiction and the Court to exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of Section 94 of the Code have their effect and not in taking away the right of the Corut to exercise its inherent power.
(19) There is nothing in Order XXXIX, Rule 1 and 2, which provide specifically that a temporary injunction is not be issued in cases which are not mentioned in those Rules. The Rules only provide that in circumstances mentioned in them the Court may grant a temporary injunction.
(20) Further, the provisions of Section 151 of the Code make a clear that the inherent powers are not controlled by the provisions of the Code. Section 151 reads:
�Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.�
(21) A similar question about the powers of the Court to issue a commission in the exercise of its powers under Section 151 of the Code in circumstances not covered by Section 75 and Order XXVI, arose in Padam Sen v. State of Uttar Pradesh, (1961)1 SCR 884, AIR 1961 SC 218 and this Curt held that the Court can issue a commission in such circumstances. It observed at page 887 (of SCR) (at p.219 of AIR) thus:
�The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature.
These observations clearly mean that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in Section 151 itself. But those powers are not be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of the Legislature. This restriction for practical purpose, on the exercise of those powers is not because those powers are controlled by the provisions of the Code but because it should be presented that the procedure specifically provided by the Legislature for orders in certain circumstances in dictated by the interest of justice.�
In another case reported in (1996) 5 Supreme Court Cases 714, N.R. Dongre and others v. Whirlpool Corporation and another. Hon''ble Supreme Court held that relief of injunction should be based on equitable principle. In case weight of equity at initial stage rests in favour of the plaintiff and also in case, grant of interlocutory injunction would cause no significant injury to the defendant, injunction may be granted. Relevant portion from N.R. Dongre and others''s case (supra) is reproduced as under:
�18. Injunction is a relief in equty and is based on equitable principles. On the above concurrent findings, the weight of equity at this stage is in favour of the plaintiffs and against the defendants. It has also be borne in mind that a mark in the form of a word which is not derivative of the product, points to the source of the product. The mark name �WHIRLPOOL� is associated for long, much prior to the defendants'' application in 1986 with the Whirlpool Corporation, Plaintiff 1. In view of the prior user of the mark by Plaintiff 1 and its transborder reputation extending to India, the trade mark ''WHIRLPOOL'' gives an indication of the origin of the goods as emanating from or relating to the Whirpool Corporation, Plaintiff 1. The High Court has recorded as satisfaction that use of the WHIRLPOOL mark by the defendant sindicates prima facie on intention to pass off the defendants'' washing machines as those of the plaintiffs or at least the likelihood of the buyers being confused or misled into that belief. The fact that the cost of the defendant washing machine is 1/3rd of the cost of the plaintiff''s plea that the defendants washing machines are not of the same engineering standard and are inferior in quality to the washing machines of the plaintiffs. In addition, it has been rightly held that the grant of interlocutory injunction would cause no significant injury to the defendants who can sell their washing machines merely by removing the small metallic strip baring the offensive trade mark name which includes ''WHIRLPOOL''. On the other hand, refusal of the interlocutory injunction would cause irreparable injury to the plaintiffs'' reputation and goodwill since the trade mark name ''WHIRLPOOL'' is associated for long because of prior user and even otherwise with Plaintiff 1, Whirlpool Corporation. These factors which have been relied on for grant of the interlocutory injunction by the trial Court indicate that the exercise of discretion was in accordance with the settled principles of law relating to the grant of interlocutory injunctions in a passingoff action. The affirmance of the trial Court''s order by the Division Bench on an appeal reinforces the trial Court''s view.�
In another case reported in (1999) 5 Supreme Court Cases 222, Bina Murlidhar Hemdev and others v. Kanhaiyalal Lokram Hemdev and others, the trial Court had dismissed the injunction application of the plaintiffs holding that plaintiff''s right is only to share in the profit of the sub partnership firm and not the property with the finding that the deed in question was forged one. Hon''ble Supreme Court held that validity of a document could not have been decided at the stage of injunction. Hon''ble Supreme Court further proceeded to held that such disputed question of fact should be decided on the basis of evidence led by the parties. For convenience, relevant portion from Bina Murlidhar Hemdev and others (supra) is reproduced as under:
�20. The learned trial judge dismissed the injunction application of the plaintiffappellants holding that the plaintiff''s right is only to a share in the profits of the subpartnership firm and not to the property, that though the release deed dated 27.3.1979 prima facie appeared to be forged, this question could not be finally decided at this stage.�
Before we go into the point, we may state that our reasoning and conclusions are intended for the limited purpose of this interlocutory application under Section 39 Rule 1 CPC and that as and when the suit is taken up for trial, the trial Court will decide the suit on the basis of such evidence as may be adduced in the suit unaffected by anything and in this judgment.
We had to go into various aspects of title to the property in these proceedings arising under Order 39 Rule 1 CPC. We had to do so because the builder and the Jains insisted upon asserting various contentions in relation to the property rights. But we may add again that this order is confined to these proceedings only and will not come in way of the suit being decided on its own merits unaffected by any observations or primafacie findings in this order.
The appeal is allowed and the orders of the trial Court and the High Court are set aside. The appeal is disposed of in terms of the directions given above and subject to its being modified (as stated above if proper safeguards are offered to protect the rights of the plaintiffs. There will be no order as to costs.�
In another case reported in (2002) 3 Supreme Court Cases 65, Laxmikant V. Patel v. Chetanbhai Shah and another, Honble Supreme Court had reiterated the principle governing the power of Court to grant temporary injunction. Plaintiff has to prove 3 conditions viz primafacie a case balance of convenience and irreparable injury to claim for an interim injunction it has been further held that it is irrelevant for the trial Court to take a notice of defendant''s mind while granting injunction. Injunction can be granted keeping in views the facts and circumstances of each case. For convenience, relevant portion from Laxmikant V. Patel''s case (supra) is reproduced as under:
�13. In an action for passingoff it is usual, rather essential, to seek an injunction, temporary or ad intrim. The principles for the grant of such injunction are the same as in the case of any other action against injury complained of. The plaintiff must prove a primafacie case, availability of the balance of convenience in his favour and his suffering an irreparable injury in the absence of grant of injunction. According to Kerly (ibid, para 16.16) passingoff cases are often cases of deliberate and intentional misrepresentation, but it is well settled that fraud is not a necessary element of the right of action, and the absence of an intention to deceive is not a defence, though proof of fraudulent intention may materially assist a plaintiff in establishing probability of deception Christopher wadlow in Law of Passing Off (1995 Edn. At p.3.06) states that the plaintiff does not have to prove actual damage in order to succeed in an action for passing off. Likelihood of damage is sufficient. The same learned author states that the defendant''s state of mind is whilly irrelevant to the existence of the cause of the action for passingoff (ibid. para 4.20 and 7.15). As to how the injunction granted by the Court would shape depends on the facts and circumstances of each case. Where a defendant has imitated or adopted the plaintiff''s distinctive trade mark or business name, the order may be an absolute injunction that he would not use or carry on business under that name (Kerly, ibid para 16.97).
The observations of the trial Court that the business name sought to be adopted by the defendants was ''somewhat similar'' to that of the plaintiffs was immaterial and irrelevant. This observation, the trial Court was probably persuaded to make, in the background that the business name sometimes adopted by the plaintiff used ''QSS'' as prefixed to �Mauktajivan Colour Lab� or as part of the full name and that made the difference. The learned counsel for the plaintiffappellant has pointed out that �QSS� is an abbreviation the elongated or full form whereof is �Quick Service Station� and that was merely an adjective prefixed to the name. We find merit in the submission. It is the word �Muktajivan� the employment of which makes distinctive the business name of the plaintiff and it is the continued use of �Muktajivan� in the business name of the plaintiff which has created a property therein linked with the plaintiff. We are, therefore, unhesitatingly of the opinion that a clear case for grant of ad interim injunction prayed for by the plaintiff was made out and the trial Court and the High Court both fell in an error in not granting the same.
We are conscious of the law that this Court would not ordinarily interfere with the exercise of discretion in the mater of grant of temporary injunction by the High Court and the trial Court and substitute its own discretion therefore except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the order of the Courts under scrutiny ignores the settled principles of law regulating grant or refusal of interlocutory injunction. An appeal against exercise of discretion is said to be an appeal on principle. The appellate Court will not reassess the material and seek to reach on conclusion different from the one reached by the Court below solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court''s exercise of discretion (see Wander Ltd. v. Antox India (P) Ltd. and N.R. Dongre v. Whirlpool Corpn.3) However, the present one is a case falling within the wellaccepted exceptions. Neither the trial Court nor the High Court have kept in view and applied their mind to the relevant settled principles of law governing the grant or refusal of interlocutory injunction in trade mark and trade name disputes. A refusal to grant an injunction in spite of the availability of facts, which are primafacie established by averwhelming evidence and material available on record justifying the grant thereof, occasion a failure of justice and such injury to the plaintiff as would not be capable of being undone at a later stage. The discretion exercised by the trial Court and the High Court against the plaintiff, is neither reasonable nor judicious. The grant of interlocutory injunction to the plaintiff could not have been refused, therefore, it becomes obligatory on the part of this Court to interfere.�
Now coming to the grounds advanced by the respondent''s counsel Dr. L.P. Mishra that in the plaint that plaintiffpetitioner has claimed the possession for the right and title over the entire area of land, seems to be not correct. In case, the entire pleading on record is considered by reading of the plaint, in para 2 of the plaint, petitioner has submitted that he has been recorded as owner and possession of plot in question measuring 2 bigha, 12 biswan and 12 biswansi. The land was recorded in favour of the petitioner by the Revenue authorities which has been said to be stayed by the Board of Revenue. In para 6 of the plaint, it has been pleaded that plaintiff and late Nattha entered into an agreement on 24 of February, 1986 and in pursuance to the said agreement, the sale deed for the land of area of 1 bigha was executed in favor of the plaintiff. So far the execution of sale deed is concerned, it is confined to only to 1 bigha of land. It is not disputed that plaintiff''s name was recorded over the entire area of land which has been stayed by the Board of Revenue. Whether the land was recorded in accordance to law or not, is a subject matter of decision by the competent Revenue Court and presently by the Board of Revenue. Accordingly, its validity may not be considered by this Court at this stage as it shall touch the merit of the case, pending before Board of Revenue.
While considering the pleadings on record on the basis of averments made in the plaint, only in piece meal or a portion of the plaint should not be considered, but the entire plaint should be read as a hole and only thereafter an inference should be drawn before arriving to the final outcome in relation to a controversy. An argument has been advanced by the learned counsel for the respondent that in view of law settled in the case of Raj Kumari Kapoor (supra), Mahadevi case (supra) that the proceeding of the suit can be quashed by this Court since the plaintiff has committed fraud and misrepresented the fact. Whether the defendantrespondent of suit may make a prayer for quashing of the regular suit without filing of a petition or raising counter claims in this Court? While entertaining the present writ petition, this Court may not grant relief which has neither been pleaded nor prayed under the relief clause. In case, the defendantrespondent wants to pray for quashing of regular suit filed by the plaintiffpetitioner, then it was incumbent on him to file a writ petition claiming the said relief with appropriate pleadings and only thereafter this Court may pass appropriate order after providing opportunity of hearing and exchange of affidavits to the parties. The prayer made by the counsel for the respondent No.2 is not sustainable for the quashing of regular suit while defending himself as respondent in the present proceeding. Of course, defendant may raise such plea relating to commission of fraud, misrepresentation of fact in the trial Court.
The arguments advanced by the learned Counsel for the defendant that the suit is bad for nonjoinder of necessary parties or the plaintiff should have filed a suit for specific performance of contract or the petitioner does not have got any right or title over the land in question or a suit for specific performance should have been filed by the petitioner, all these question requires for interference on merit by the competent civil Court where the suit is pending and not in this Court under jurisdiction of Article 226 of the Constitution of India. For all these questions and grounds raised by the parties, appropriate issue should be framed by the trial Court for adjudication, in accordance to law after adducing the evidence by the parties. Any interference at this stage by this Court on merit will amount to inference with the proceeding pending in the civil Court affecting the outcome of the civil suit, without providing the opportunity to lead evidence documentary as well as oral coupled with the opportunity to cross examine the witness of both sides.
According to the learned Counsel for the petitioner the long standing possession should not be disturbed except by the course of law. It is very settled proposition of law which does not call for any finding on the point Hon''ble Supreme Court in the case of Krishna Ram Mahale (supra) held that where a person is in settled possession of a property, even on the assumption that he had no right to remain in the property, he can not be dispossessed by the owner fo the property except by the course of law. It has also been settled in the case of Smt. Shakira Khatoon Kazmi (supra) that right of parties should be determined with reference only to terms contained in the deed.
Petitioner''s counsel while relying upon a judgment in the case of Shrimant Sharmrao Sryavanshi (supra) submits that in view of the provisions contained in Section 53 of the Transfer of Property Act if any of the conditions contained in the plaint survives, law of limitation shall not come in the way of the defendant by taking a plea under the Limitation Act Law of limitation does not place any restriction on the defendant to put forward with a defence, though it may be barred by the limitation.
In the case of M/s Anamallai Club (supra) Hon''ble Supreme Court held that law does not permit any person to take law into his hands and to dispossess a person in actual possession without having recourse to a Court. No doubt, fraud or collusion vitiates a proceeding as held in Virendra Kumar Gupta''s case (supra) and S.P. Chengalvarya Naidu''s case (supra).
A judgment or decree obtained by fraud was set aside by the Hon''ble Supreme Court in the case of S.P. Chengalvarya Naidu''s case (supra) and it has been held that such judgment should be treated as nullity and may be questioned in a collateral proceedings. Non disclosure of relevant and material documents with a view to advantage amounts to fraud. However, in the present case still the controversy in subjudice before the trial Court. The registered agreement executed by Nattha in favour of the petitioner is not disputed. The transfer of land of 1 bigha is also not disputed. Even in case, the mutation was done illegally by the alleged collusive act, is a question which can be considered by this Court at this stage more so when a revision is pending before the Board of Revenue while exercising statutory power under U.P.Z.A.& L.R. Act. Accordingly, at this stage, this ground is not available to the defendant to raise in the present writ petition. More so when the parties have still to lead evidence before the trial Court in support of their claims.
As held by Hon''ble Supreme Court in the case of Gurmuk Ram Madan (supra) that burden lies on the plaintiff to prove his case. Ordinarily, plaintiff should stand on his own leg and weakness in defence may not be a ground to allow the suit. But this question and plea which shall be available to the parties only at the time of final adjudication of the suit and not at the stage of Order 39 Rule 1 and 2 of the Code of Civil Procedure as settled by Hon''ble Supreme Court in the cases referred hereinabove. In the case of Gurmuk Ram Madan and State of Bihar v. Radha Krishan Singh''s case (supra), it has been held that in case, plaintiff failed to prove his pleadings, suit deserves to be dismissed. The proposition of law cited by learned counsel for the respondent''s counsel is very well settled law but that stage has not come. In the case of State of Bihar v. Radha Krishna Singh (supra), Hon''ble Supreme Court has held as under:
�146. We would now discuss the evidence both oral and documentary in the light of the principles laid down by the aforesaid decisions. By way of introduction, it may be noted that in the present case the onus lies squarely on the plaintiff Radha Krishna Singh to prove his case by sown that he was the next reversioner of the late Maharaja and that every link in the genealogical tree which he has set out in the plaint was proved. Only after he has discharged his burden by proving the aforesaid facts, could the defendants be called upon to rebut their case. On a careful scrutiny of the evidence it seems that what the plaintiff has done is to file any and every document, deposition, statement, declaration, etc. where there is any genealogy which connects him with either the Maharaja of Banaras or his gotias without making any attempt to prove the main link on which rests the entire fabric of his case. The result has been that the plaintiffs have landed themselves into a labyrinth of delusion and darkness from which it is difficult for them to come out and the case made out by them has been reduced to smithereens and smoulders and despite all their snaring and snarling they have miserably failed to prove the pivotal point, viz, the link between Ramruch Singh, Gajraj Singh, Debi Singh and Bansidhar Singh.�
From the law cited by the learned counsel for the respondent himself, it is clear that arguments advanced by him may create a ground for consideration only after the conclusion of trial and at the time of final hearing of the suit in question before trial Court or at the first appellate stage but not at this stage when the parties till have to lead evidence.
In the case Sunil Kumar (supra) relied by the learned counsel for the respondent that when an equally efficacious remedy is available, injunction should not be granted. Submission of the learned Counsel for the respondent is that plaintiff should have filed a suit for specific performance of the contract instead of filing the suit for permanent injunction. In the case of Sunil Kumar (supra) the controversy is related to joint Hindu family property, accordingly, Hon''ble Supreme Court held as under:
�7. At the outset it is to be noticed that in a suit for permanent injunction under Section 38 of the Specific Relief Act by a coparacerner against the father or manager of the joint hindu family property, an injunction cannot be granted as the copoarcer has got equally efficacious remedy to get the sale set aside and recover possession of the property. Subsection (h) of Section 41 of Specific Relief Act bars the grant of such an injunction in the suit. Secondly, the plaintiffrespondents brought this suit for permanent injunction restraining their father, defendant 1, from selling or alienating the property to defendant 2 or any other person and also restraining defendant 2 from proceeding with the suit for specific performance of the agreement to sell pending in the civil Court. Thus the relief sought for is to restrain by permanent injunction the karta of the joint Hindu Mitakshara family i.e.defendant 1 from selling or alienating the house property in question. Defendant 1 as karta of the joint Hindu family undoubtedly, the owner to alienate the joint family propoerty for legal necessity or for the benefit of the estate as well as for meeting antecedent debts. The grant of such a relief will have the effect of preventing the father permanently from selling or transferring the suit property belonging to the joint Hindu Undivided Family even if there is a genuine legal necessity for such transfer. If such a suit for injunction is held maintainable the effect will be that whenever the father as karta of the joint Hindu coparacenary property will purpose to sell such property owing to a bona fide legal necessity, any coparacener may come up with such a suit for permanent injunction and the father will not be able to sell the property for legal necessity until and unless that suit is decided.�
In the case of Municipal Corporation of Delhi (supra), appellate remedy under Section 169 of the Delhi Municipal Corporation Act, 1957, was available to the assesseerespondent, hence, Hon''ble Supreme Court held that on account of availability of equally efficacious remedy, no injunction should have been granted. Relevant portion from the Municipal Corporation of Delhi''s case (supra) is reproduced as under:
�10. It also seems that the attention of the learned Judge was not directed towards Section 41(h) of the Specific Relief Act, 1963, which lays down that an injunction, which is a discretionary equitable relief, cannot be granted when an equally efficacious relief is obtainable in any other usual mode or proceeding except in cases of breach of trust. Learned Counsel for the appellant Corporation points that there was the ordinary machinery of appeal, under Section 169 of the Delhi Municipal Corporation Act, 1957, open to the assessee respondent. It had not even been found that the respondent was unable to deposit the necessary amount before filing the appeal. However, we abstain from deciding the question whether the suit is barred or not on this ground. All we need say this that this consideration also has a bearing upon the question whether a primafacie case exists for the grant of an interim injunction.�
The case of Sunil Kumar as well as the case of the Municipal Corporation of Delhi, does not seem to be applicable under the facts and circumstances of the present case. In the present case in view of the admitted fact that there was a registered agreement and atleast 1 bigha of land was transferred by the registered sale deed in favour of the plaintiff, it can not be said that plaintiff does not have got right to make appropriate prayer for the protection of his property atleast to the extent that registered sale deed was executed. Similarly, right of the plaintiff in pursuance to the registered agreement also survives subject to statutory provisions and rebuttal by the respondent as the said agreement had permitted the plaintiff petitioner to level the land and make plotting for the pruposes of sale and for the effective delivery of possession. Similarly, while exercising jurisdiction under Article 226 of the Constitution of India, non joinder of party in a suit may not create a ground for interference. In case, respondent finds that Sri Nattha''s sons namely Maiku and Gomti are necessary parties, it shall be open to the respondents to raise appropriate objections by filing appropriate application coupled with framing of an issue relating to non joinder of necessary parties. Right of defendant No.2 flows from the registered sale deed. Right of Adarsh Cooperative Housing Society is admittedly flows from UNREGISTERED SALE DEED executed by the sons of late Sri Nattha namely Maiku and Gomti. How an unregistered sale deed will create a right in view of the provisions contained in the Registration Act is substantial question of law which is still to be dealt with by the trial Court. In case, right of Adharsh Cooperative Housing Society being acquired through unregistered sale deed without any legal sanction, then how the said Society could have transfer the land to the respondent No.2 by the registered sale deed within the parameter of law? Whether such sale deed will create a right or title in favour of the opposite party No.2, is an important question which requires adjudication by the trial Court in accordance to law?
As held by Hon''ble Supreme Court in the case of Manohar Lal Chopra that injunction can be granted even if the circumstances do not fall within the Order 39 of the Code of Civil Procedure. The provision is not exhaustive. In the case of N.R. Dongre and others (supra) as held by Hon''ble Supreme Court the injunction is a relief of equity and is based on equitable principles. However, Hon''ble Supreme Court in the case of Anand Prasad Agarwalla (supra) held that no mini trial of the suit can be held at the stage of temporary injunction. The ratio of the Apex Court Judgment is that no final finding on merit should be given at the stage of Order 39 Rule 1 and 2 of the Code of Civil Procedure and that can be done only after adducing of evidence by the parties. Relevant portion of Anand Prasad Agarwalla''s case is reproduced as under:
�4. The appellate Court felt that serious questions had been raised for consideration in the course of the suit and therefore there was a prima facie case for consideration. Particularly the sale certificate that had been issued indicated that the appellant had purchased the properties in the auction sale. A presumption arose in favour of that possession pursuant to the record of rights. On that basis the Division Bench held that the temporary injunction should be granted subject to certain conditions. Hence, these appeals.
It may not be appropriate for any Court to hold a minitrial at the stage of grant of temporary injunction. As noticed by the Division Bench that there are two documents which indicated that there was primafacie case to be investigated. Unless the sale certificate is set aside or declared to be a mullity, the some has legal validity and force. It cannot be said that no right could be derived from such certificate. Secondly, when the contesting respondents were in possession as evidenced by the record of rights, it cannot be said that such possession is by a trespasser. The claim of the contesting respondent in their own right. The decisions referred to by the learned counsel for the appellate are in the context of there being no dispute as to ownership of the land and the possession was admittedly with a stranger and hence temporary injunction is not permissible. Therefore, we are of the view that the Division Bench has very correctly appreciated the matter and come to the conclusion in favour of the respondents.�
In view of the settled proposition of law referred herein above, the arguments advanced by the learned Counsel for the petitioner Sri Umesh Kumar Srivastava as well as learned counsel for the respondent Dr. L.P. Mishra, touches the merit of the case and any discussion or inference on the said ground shall affect the proceeding before the trial Court where still parties have to lad evidence and raise objection for their claims and counter affidavit. Since the existence of registered agreement between late Sri Nattha and plaintiff and consequential transfer of land by registered sale deed in favour of the plaintiff for a portion of land is not disputed and similarly transfer of remaining land by unregistered sale deed by heirs of late Nattha namely Maiku and Gomti in favour of the Adarsh Cooperative Housing Society which has transferred the same land in favour of the opposite party No.2, are also not disputed. Hence, at this stage, it shall be appropriate that nature of land should not be changed and the parties may be restrained from alienating the property in question. Irreparable loss may cause to the plaintiff in case remaining 1 bigha 10 biswa of land is transferred to any person by the respondent No.2 who has claimed to be in its possession. All these questions and grounds raised by the defendantrespondent are liable to be adjudicated by the trial Court. Equity, balance of convenience and to check the irreparable loss or injury to the parties, it is necessary that parties may not transfer the land in question to any person during the pendency of the suit and also should not change the nature of the land.
Before parting with the case, it is observed that the reasoning and conclusion discussed and arrived hereinabove is for limited purposes to protect the property in dispute. The observations made in the present judgment shall not affect the evidence or merit of the suit pending in the trial Court. The trial Court shall decide the suit on the basis of such evidence adduced by the parties.
In view of the above facts and circumstances, the writ petition is allowed subject to the observation made hereinabove. Parties are directed not to alienate the land in question and also do not change the nature of the land during the pendency of suit in the trial Court. Keeping in view the fact that the land in question seems to have been purchased by the parties for commercial purposes and pendency of litigation for a long period may cause irreparable loss to Cooperative Societies in question and to its members, the trial Court is directed to decide the suit in accordance to law expeditiously and preferably within a period of one year from the date of receipt of certified copy of this order.
Subject to above, the writ petition is allowed. No order as to costs.
(Petition allowed)