Tara Dutt And Others vs Ramesh Chandra And Others

Sharad Kumar Sharma, J

An injunction, with a premonition of a possibility of sale of a property, can never be a cause of action for getting a decree of injunction, in anticipation of an act, to be done by the defendant in future, which has an affect in future; more particularly, in the instant case, when the cause of action, which has been pleaded in para 13 (Annexure 1 to the Second Appeal) in the following manner:-

"13यह कि वाद का कारण वादीगणों को प्रतिवादीगणों के विरूद्ध दिनांक 28.02.2016 उस समय उत्पन्नत हुआ जब प्रतिवादीगण अपने साथ मौके पर खतौनी में दर्ज  अपने नाम की जमीन की बिक्री हेतु खरीदारों को लाये तथा साथ-साथ वादीगणों के नाम खतौनी में दर्ज भूमि खोत सं. 24/1, 24/1, 25/1 की भूमि बाबत बिक्री की बात खरीदारों से करने एवं प्रतिरोध किये जाने पर धमकी दे गये कि वादीगणों के नाम उक्त खोत नम्बर के रक्वे की जमीन को बिक्री कर देंगे तथा आज दिन तक न्यायालय के क्षेत्राधिकार अन्तर्गत निरन्तर जारी है।

The cause of action that the defendants (respondents herein) are intending to sell the property has been sworn in the plaint on the basis of a legal advice. Legal advice cannot be a basis to grant the cause of action for filing of a suit for injunction. However, the suit was decreed by the judgement dated 27.05.2017. Being aggrieved against the said judgement, the defendants/respondent preferred First Appeal before the Additional District Judge, Ram Nagar, District Nainital registered as Civil Appeal No. 24 of 2017, Sri Ramesh Chandra and others v. Sri Tara Dutt and others. The said Civil Appeal, as preferred by the defendants/respondents, was allowed by the judgement dated 28.09.2018, and the judgement and decree dated 27.05.2017 rendered by the learned trial Court was set aside.

The reason, which has been assigned by the learned Appellate Court while formulating the question under Order 41 Rule 31 is to the effect :-

"5. प्रश्नगत अपील के निस्तारण के संदर्भ में निम्नलिखित अवधार्य बिन्दु विरचित किये जाते हैं।

क्या अपीलार्थीगण/प्रतिवादीगण के द्वारा प्रत्यर्थीगण/वादीगण की प्रश्नगत भूमिधरी भूमि काे विक्रय किये जाने का प्रयास किया जा रहा है? यदि हाॅ ताे प्रभाव?

क्या प्रत्यर्थीगण/वादीगण को प्रश्नगत वाद दायर करने का वाद कारण प्राप्त है? यदि हॉ ताे प्रभाव?

अनुतोष?

That as to whether the plaintiffs/respondents i.e. appellants herein in the instant Second Appeal, had a cause of action to seek a decree of the nature of a restraint against the defendants from selling the property. The Court held that there was no cause of action to institute the Suit, more particularly, in the light of the fact, which has already been observed above that the cause of action once it is sworn on the basis of legal advice, it goes without saying that there didn't existed any actual accrual of cause of action to institute the Suit.

The learned counsel for the plaintiffs/appellants to the present Second Appeal had submitted that even on the basis of the valuation of the suit, the Appeal would not be tenable before the learned Appellate Court. This Court is constrained to observe that the said issues, pertaining to the valuation of the Suit, which was issue No. 2, was principally decided by the learned trial Court by an order dated 27.05.2016 as a preliminary issue, which has not been placed before this Court. May that be so, even the question of valuation was not a question which was pressed and pleaded by the plaintiffs/appellants before the First Appellate Court challenging the competence of the First Appellate Court to deal with the matter on the ground of valuation. Having not raised the said question at the first instance before the First Appellate Court, it is no more open for the plaintiffs/appellants to raise the said question once he has failed to get the findings recorded on the same by the learned trial Court.

Hence, in view of the aforesaid reasons, this Court is of the view that no substantial question of law, as pleaded by the plaintiffs/appellants in the memo before the Second Appellate Court is required to be answered. Consequently, the present Second Appeal fails and is accordingly dismissed.

However, there would be no order as to cost.