Suit for specific performance
basavaraj shiromani
(Querist) 19 November 2013
This query is : Resolved
In a suit for specific performance of contract, the trial court as well as the Hight Court comes to the conclusion that the deed relied by the plaintiff is not at all an agreement of sale. Then what will be the position of a suit ? whether suit is to be dismissed or stands for any other purpose ?
ajay sethi
(Expert) 19 November 2013
it is necessary to go through the orders passed by trial court and high court to advise . if as per averments made in plaint and evidence of record no prima facie case is made out no injunction would be granted .
the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but 13 means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit." -
ajay sethi
(Expert) 19 November 2013
suit would be infructous .
Vidhi Joshi
(Expert) 19 November 2013
agree with Mr. Sethi.
R.K Nanda
(Expert) 19 November 2013
depends on high court.
T. Kalaiselvan, Advocate
(Expert) 19 November 2013
As per your contention the court both at the lower level and the high court has opined that the deed relied upon by the plaintiff is not an agreement for sale, in such cases, it can be treated as a receipt for the money received by the defendant from the plaintiff and as an alternate the court may suo moto order by decree of judgment for refund of the money so received by the defendant to the plaintiff with or without interest, with or without costs, or may at its discretion dismiss the suit in limine for not able to establish the cause of action for the relief sought.
Biswanath Roy
(Expert) 19 November 2013
In a Suit for specific performances of a contract the prima-facie burden is to prove that the dispute relates to non-acting upon a contract or agreement. If the subject matter of the suit discloses that it is not a contract or agreement in that event court shall dismiss the case either with cost or without cost.
basavaraj shiromani
(Querist) 19 November 2013
Thank you Biswanath Roy, your answer follows the rulings
