Ratilal Hirjibhai Popat of Jamnagar vs Devanand Samatbhai Rudach of Jamnagar

Honourable Mr. Justice Rajesh H. Shukla

The present Appeal from order has been filed by the appellant original plaintiff under O. 43 R. 1 of the CPC being aggrieved with the order passed in Special Civil Suit No. 95/2009 below Ex. 5 by the 3rd Sr. Civil Judge, Jamnagar, refusing injunction in a suit for specific performance on the grounds stated in the memo of the Appeal from Order. Heard learned advocate Shri Mehul Shah for the appellant original plaintiff and learned advocate Shri PG Gadhvi for the respondent.

The facts of the case briefly stated and as referred to in the detailed order which has been passed by the trial court has a reference to an agreement to sell of an agricultural land and the recitals/conditions which have been referred to in the application for injunction are provided, inter alia, that it is required to be converted into non-agricultural land by appropriate permission. Learned advocate Shri Mehul Shah submitted referring to this aspect that the document was to be executed upon conversion of the land into non-agricultural land. However, he submitted that the court below has proceeded on the wrong assumption that a decree could not be passed or such contract cannot be specifically enforced. In fact, he submitted that even after such condition, conditional decree also could be passed and therefore there is no bar in law for such a contract.

He has referred to and relied upon the judgment of this Court in the case of Shah Jitendra Nanalal Vs. Patel Lallubhai Ishverbhai, , and submitted that in that case the condition was regarding getting permission under the U.L.C. Act and the court has made the observation, to which he has pointedly referred. Learned advocate Shri Shah submitted that the court below has committed an error while passing the impugned order. He submitted that another aspect is with regard to the provisions of the Registration Act. Again, he submitted that it could not affect inasmuch as the provisions of the Act does not bar filing of such a suit and therefore the present Appeal from Order may be allowed.

Learned advocate Shri Shah has also referred to and relied upon the judgment of the Hon''ble Apex Court in the case of Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass, to emphasise and support his submission regarding the injunction that normally status-quo pending such litigation is required to be granted and therefore the present Appeal from Order may be allowed.

Per contra, learned advocate Shri Gadhvi has submitted that the agreement to sell has been made in respect of non-agricultural land which is hit by the provisions of Bombay Tenancy and Agricultural Lands Act, 1948, inasmuch as the plaintiff is not an agriculturist. He submitted that therefore such a contract cannot be specifically enforced. Alternatively, he has also contended that if it is a conditional or contingent contract, the specific performance of such a contingent contract is not granted. Learned advocate Shri Gadhvi referred to the papers and submitted that the land in question is covered by the notification of the Union of India as it is within the radius of 900 mtrs. of the Air Force Station, Jamnagar and therefore any such condition for N.A. use could not be granted. Therefore, learned advocate Shri Gadhvi submitted that as the contract is a contingent contract dependent upon some condition which is not likely to happen, and such a contingency which is not likely to be fulfilled, a specific performance of such contract cannot be insisted.

He further submitted that in fact as averred in the suit, it is the partnership where four partners are there and nowhere it has been mentioned that the plaintiff is claiming only 1/4th share in the entire land, meaning thereby, the suit is not filed by the firm and it is an unregistered firm. Therefore also, the suit itself would not be maintainable. Therefore, learned advocate Shri Gadhvi submitted that considering the provisions of the Specific Relief Act, particularly sec. 41(e) r/w O.39 R. 1 the court has declined to grant any injunction which cannot be said to be erroneous. He referred to the affidavit-in-reply filed with regard to the contentions raised referring to the provisions of sec. 31, 32 of the Contact Act as well as the provisions of the Specific Relief Act and submitted that the present Appeal from Order may not be entertained.

In view of rival submissions, it is required to be considered whether the present Appeal from Order can be entertained or not and whether the court below has committed any error or misdirected itself in declining to grant injunction in a suit for specific performance.

As could be revealed from the rival submissions and the provisions of law, admittedly, the land in question is an agricultural land, which cannot be sold or transferred to a non-agriculturist as it would be hit by the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. Further, even the contract/agreement to sell refers to the conditions subject to which the sale deed could be executed. One of the conditions is getting the land converted into non-agricultural land and only on happening of such an eventuality, the sale deed could be executed. At the same time, there is a notification of the Union of India which prohibits any such transaction within the radius of 900 mts. of the Air Force Station and would not permit the conversion of the land into non-agricultural land. Thus, this condition itself has become impossible for compliance. It is in these circumstances, if the contract is a contingent contract which is dependent upon happening of an eventuality, whether specific performance of such a contact could be claimed.

Section 41 of the Specific Relief Act provides for "injunction when refused". Section 41(e) provides,

(e) to prevent the breach of a contract the performance of which would not be specifically enforced

Therefore, considering these provisions the impugned order which has dealt with this aspect cannot be said to be erroneous. Moreover, the grant of injunction is also required to be considered in background of O.39 R. 1 where the court is required to consider the criteria for grant of injunction like the prima facie case, balance of convenience, comparative hardship etc. Therefore, considering these aspects when the court below had declined to grant any injunction as prayed, it cannot be said that the court below has misdirected itself or has committed any error which would call for any interference.

The submissions made with regard to the Registration Act also would not be of much relevance. It is in these circumstances the present Appeal from Order cannot be entertained and deserves to be dismissed and accordingly stands dismissed. In view of dismissal of the Appeal from Order, the Civil Application does not survive and the same is accordingly disposed of.