Mamta and Another Vs Ashok Kumar

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Neutral Citation No. ( 2026:HHC:17172 )

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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OMP No. 1386 of 2025 in Civil Suit No. 69 of 2024 Reserved on: 28.04.2026 Date of decision: 14.05.2026

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________________________________________________ Mamta & another

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…..Non-applicants/plaintiffs. Versus ……Applicant/defendant.

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Ashok Kumar ……Applicant/defendant. _______________________________________________ Coram_ The Hon'ble Mr. Justice Sushil Kukreja, Judge. 1 Whether approved for reporting? Yes. For the non-applicants/ plaintiffs: Mr. Mohit Jaitak, Advocate (through video conferencing) and Mr. Abhishek Nagta, Advocate. For the applicant/defendant: Mr. Ajay Sharma, Senior Advocate, with Mr. Surya Bhan Singh, Advocate.

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Sushil Kukreja, Judge.

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The instant application has been preferred by the applicant (defendant) under Order 39, Rules 1 & 2) of the Code of Civil Procedure (CPC) with the prayer to stop and restrain the non-applicants/plaintiffs from carrying out any commercial activity of any kind, whatsoever, in the suit premises and suit land during the pendency of the suit.

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It is averred in the application that Civil Suit No.

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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69 of 2024 has been filed by the non-applicants/plaintiffs claiming decree of specific performance in sequel to agreement to sell, dated 17.02.2020. The perusal of the said agreement would demonstrate that at the time of entering into the agreement, the possession of the suit premises and suit land was given only for the purpose of cleaning, leveling and raising boundary wall on the suit land. As per the applicant/defendant, the dispute arose between the parties when non-applicants/plaintiffs put the suit premises and suit land for commercial use without first getting the sale deed registered and further in view of the fact that valuation of the premises and suit land was not being got correctly assessed. The applicants averred that the suit land is being used as a warehouse for storing various items with respect to which the non-applicants are in business. It has been further averred that the suit land has been put to commercial use by the nonapplicants w.e.f. 17.02.2020, the date of agreement to sell, and now when the suit is filed by them, the applicant has raised counter claim under Order 8, Rule A CPC to the tune of Rs.63,00,000/- assessed upto 17.02.2025 alongwith interest with further prayer for damages/compensation to the applicant after 17.02.2025 also upto the date of payment at

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the rate of Rs.1,00,000/- per month alongwith interest @ 9%

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per annum.

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2(a). The non-applicants filed written statement to the counter claim wherein it was averred that they had affixed machinery by spending Rs.75,00,000/-. It has also been averred that the statements made on oath by the nonapplicants show that they have admitted that the suit premises and suit land has been put to commercial use and the non-applicants are earning handsome amount per month. As per the applicant, the above act on the part of the non-applicants is beyond the contract, i.e., agreement to sell, dated 17.02.2020 and, in fact, the same is the main reason and cause of filing of the present suit. It has been averred that if the non-applicants are not restrained from carrying out any commercial activity in the suit premises and the suit land, during the pendency of the instant suit, then irreparable loss and injury will be caused to the applicant, which will not be compensated in terms of money and conversely the nonapplicants will not suffer any loss.

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2(b). The applicant averred that there exists a prima facie case in his favour and in case prayer, as made through this application, is not granted, irreparable loss and injury will

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be caused to the applicant. Lastly, it is prayed that the instant application be allowed and the nonapplicants/plaintiffs be restrained from carrying out any commercial activity, whatsoever, in the suit premises and suit land during the pendency of the suit henceforth, in the interest of justice.

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The non-applicants/plaintiffs filed reply to the application, wherein preliminary objection of maintainability of the application was raised and it was averred that since in

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the counter claim relief of injunction was not sought, thus the interim relief of injunction cannot be granted. The counter claim is for recovery, therefore, the relief of temporary injunction cannot be granted and counter claimant can be compensated in terms of money, in case he succeeds in the counter claim. On merits, it has been averred the applicant after receiving a hefty amount now cannot resile from the terms of the agreement, as the agreement was signed out of free will and volition of the applicant. Subsequently, the agreement was extended from time to time, thus it cannot be said that the terms of the agreement were not correctly recorded and the value of the land has not been correctly assessed. The non-applicants further averred that the

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possession of the suit land was handed over by the applicant and there is no negative covenant or recital in the agreement which bars the non-applicants from running their business. As per the non-applicants, the applicant did not raise this issue before filing the instant suit and the non-applicants had also sent a legal notice to the applicant, but the same was not replied.

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3(a). The non-applicants averred that the applicant cannot take benefit of his own wrong. The mutation of above

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said property was yet to be sanctioned in favour of the applicant, as he had purchased it in an auction, the applicant had promised to get mutation entered and sanctioned in his name and thereafter get the sale deed executed and registered in favour of the non-applicants by 16.08.2020 and in case of refusal, the non-applicants can get the sale deed executed through competent court and also the applicant will pay Rs.60,00,000/- to the non-applicants.

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3(b). The non-applicants averred that as the deed of sale certificate and mutation of the aforesaid property could not be sanctioned in favour of the applicant, thus the applicant extended the date for execution and registration of sale deed for 30.06.2021, but he could not get the deed of

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sale certificate and mutation sanctioned in his favour by 30.06.2021. On 24.06.2021 the applicant again extended the date for execution and registration of sale deed by 30.12.2023. The non-applicants further paid Rs.20,00,000/to the applicant, out of the sale consideration, i.e., Rs.10,00,000/- from the account of Shri Ashok Kumar (nonapplicant No. 2) and Rs.10,00,000/- from the account of Smt. Mamta (non-applicant No. 1). Thus, a sum of Rs.50,00,000/has been paid to the applicant. However, on 30.12.2023 the non-applicants remained waiting for the applicant in the premises of Sub-Registrar, Dulehar, for execution and registration of sale deed, but he did not turn up and ultimately on that day the non-applicants got an affidavit attested from the Executive Magistrate-cum-Naib Tehsildar, Dulehar for marking their presence.

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3(c). The non-applicants averred that in furtherance of the agreement of sale, non-applicant No. 2 also paid to the applicant Rs.25,00,000/-, vide cheque No. 000002. They (non-applicants) made improvements in the aforesaid land and also affixed machinery by spending Rs.75,00,000/-. As

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per the non-applicants, there is no violation of the agreement, as alleged by the applicant. On the one hand,

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the applicant is relying on the agreement to sell and on the other hand in the written statement he is alleging the agreement to sell is wrong.

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3(d). The non-applicants averred that the applicant does not have any prima facie case or balance of convenience and no irreparable loss will be caused to him, as the relief sought by him in the counter claim is for recovery, therefore, in any case, if the counter claim succeeds, the applicant can be compensated in terms of money. Lastly, the non-applicants prayed that the instant application be dismissed.

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The learned Senior Counsel for the

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applicant/defendant contended that at the time of entering into the agreement to sell, the possession of the suit land and suit premises was given to the non-applicants/plaintiffs only for the purpose of cleaning, leveling and raising boundary wall, but despite that they have put the suit land and suit premises for commercial use without first getting the sale deed registered. He further contended that there exists

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a prima facie case in favour of the applicant/defendant and in case the prayer made in the application is not granted and if the non-applicants/plaintiffs are not restrained from carrying-

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out any commercial activity on the suit land/suit premises, irreparable loss and injury will be caused to the applicant/defendant.

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Conversely, the learned counsel for the nonapplicants/plaintiffs contended that since the applicant/defendant has not sought the relief of injunction in the counter-claim and the same only being filed for the recovery, therefore, relief of temporary injunction cannot be granted to him. He further contended that the nonapplicants/plaintiffs are always ready and willing to perform their part of the contract and had also paid major portion of the amount to the applicant/defendant, besides they had spent an amount of Rs.75,00,000/- for affixing the machinery, therefore, the applicant/defendant has not made-out any case in his favour for granting the relief of injunction.

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I have heard the learned Senior Counsel for the applicant/defendant, learned counsel for the nonapplicants/plaintiffs and carefully examined the records. 7. The power to grant a temporary injunction lies with the discretion of the Court. The Court while granting or refusing injunction shall exercise sound, judicious discretion to find the amount of substantial mischief or injury which is

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likely to be caused to the parties if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. However, the discretion should be exercised reasonably, judiciously and on sound legal principles. It is a settled position of law that for an applicant to be entitled to the relief of injunction, he has to satisfy three basic ingredients. The applicant has to show strong prima facie case for grant of injunction, balance of convenience should also be in his favour and finally it should

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be shown that in case an injunction is not granted, he will suffer irreparable loss and injury, which cannot be compensated in terms of money.

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For grant of interim injunction, being an equitable relief, the Court must keep in mind all the equitable considerations. Further, grant of interim injunction depends upon the facts and circumstances of each case as no straitjacket formula can be laid down. The aforesaid principles have also been followed by the Hon'ble Supreme Court in its various decisions. In Gujarat Bottling Co. Ltd. & others vs. Coca Cola Co. & others, reported in 1995 (5) SCC 545 , it has been held as under:

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“43. The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the Court. While exercising

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the discretion the court applied the following tests – (1) whether the plaintiff has a prima facie case; (ii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the “balance of convenience” lies. [See: Wander Ltd. v. Antox India (P) Ltd. (1990 Supp SCC 727)(SCC at pp. 731-32)]. In order to protect the defendant while granting an interlocutory injunction in his favour the court can require the plaintiff to furnish an undertaking so that the defendant can be adequately compensated if the uncertainty were resolved in his favour at the trial.”

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9. In Colgate Palmolive (India) Ltd. vs. Hindustan

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Lever Ltd., reported in AIR 1999 SC 3105, in para 24 it has been held as under:

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“24. We, however, think it fit to note hereinbelow certain specific considerations in the matter of grant of interlocutory injunction, the basic being nonexpression of opinion as to the merits of the matter by the Court, since the issue of grant of injunction usually, is at the earliest possible stage so far as the time-frame is to weigh with the Court hearing the application or petition for the grant of injunctions are as below:

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(i) Extent of damages being an adequate remedy;

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(ii) Protect the plaintiff’s interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor;

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(iii) The Court while dealing with the matter ought not to ignore the factum of strength of one party’s case being stronger than the others;

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(iv) No fixed rules or notions ought to be

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had in the matter of grant of injunction but on the facts and circumstances of each case – the relief being kept flexible; (v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case; (vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant; (vii) Whether the grant of refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.”

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The Apex Court in Narendra Kante vs. Aanuradha Kante & others, (2010) 2 SCC 77, opined that, while considering an application for grant of injunction, the Court has not only to take into consideration the basic elements regarding existence of a prima facie case, balance of convenience and irreparable injury, it has also to take into consideration the conduct of the parties since grant of injunction is an equitable relief. The relevant para of the aforesaid judgment is as under:

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“28. Now, coming to the question of balance of convenience and inconvenience and irreparable loss and injury, it has to be kept in mind that Respondent 10 has already acquired rights in respect of the share of Respondents 8 and 9 to the suit property and in the event an interim order is passed preventing development of the portion of the property acquired by him, he would suffer irreparable loss and injury since he would not be able to utilize the property till the suit is disposed of, which could take severable years at the original stage, and, thereafter, several more years at the appellate stages.”

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In Zenit Mataplast Private Ltd. v. State of Maharashtra & others, (2009) 10 SCC 388 , the Hon'ble

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Supreme Court considered the principles for grant of interim

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relief and held as under:

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"30. Interim order is passed on the basis of prima facie findings, which are tentative. Such order is passed as a temporary arrangement to preserve the status quo till the matter is decided finally, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. The object of the interlocutory injunction is, to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. (vide Anand Prasad Agarwalla v. Tarkeshwar Prasad ((2001) 5SCC 568), and State of Assam v. Barak Upatyaka D.U. Karmachari Sanstha ((2009) 5 SCC 694).

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31. Grant of an interim relief in regard to the nature and extent thereof depends upon the facts and circumstances of each case as no strait-jacket formula can be laid down. There may be a situation wherein the defendant/ respondent may use the suit property in such a manner that the situation becomes irretrievable. In such a fact situation, interim relief should be granted (vide M. Gurudas & Ors. v. Rasaranjan ((2006) 8 SCC 367) and Shridevi v. Muralidhar ((2007) 14 SCC 721. Grant of temporary injunction is governed by three basic principles, ie. prima facie case; balance of convenience; and irreparable injury, which are required to be considered in a proper perspective in the facts and circumstances of a particular case. But it may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction (Vide S.M. Dyechem Ltd. v. M/s Cadbury (India) Ltd. ((2000) 5 SCC 573 and Anand Prasad Agarwalla ((2001) 5 SCC 568."

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In the instant case, the non-applicants/plaintiffs

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have filed a suit for specific performance of the agreement to sell dated 17.02.2020 against the applicant/defendant directing him to execute and get the sale-deed registered in his favour. As per the non-applicants/plaintiffs they had paid a sum of Rs.50,00,000/- on 17.02.2020 and it was agreed that the remaining sale consideration would be paid at the time of execution and registration of the sale-deed. It is

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further case of the non-applicants/plaintiffs that the sale certificate was registered by the bank on 22.03.2022 in favour of the applicant/defendant and since the mutation of the property was yet to be sanctioned in favour of the applicant/defendant, he promised to get the mutation entered and sanctioned in his name and thereafter get the sale deed registered in favour of the non-applicants/plaintiffs by 16.08.2020, which date was further extended till 30.12.2023. It is further case of the non-applicants/plaintiffs that on 30.12.2023 they remained waiting for the applicant/defendant in the premises of Sub Registrar Dulehar for execution and registration of the sale deed, but the applicant/defendant did not turn up. Then the nonapplicants/plaintiffs made enquiry and contacted the applicant/defendant so as to know the reasons for his absence on the promised date. The applicant/defendant asked the non-applicants/plaintiffs to pay Rs.25,00,000/-. The non-applicants/plaintiffs in furtherance to the request of the applicant/defendant and also in furtherance of the agreement of sale paid Rs.25,00,000/to the applicant/defendant. The further case of the plaintiffs is that the mutation No. 1244 was sanctioned in favour of the

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applicant/defendant on 30.01.2024 but instead of executing and registering the sale-deed, he started blackmailing the non-applicants/plaintiffs. The non-applicants/plaintiffs further averred that they have made improvements in the aforesaid land and have also affixed machinery by spending approximately Rs.75,00,000/-.

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Thus the perusal of the record prima facie reveals that the non-applicants/plaintiffs had paid major portion of the sale consideration to the defendant and also had made improvements in the suit property besides had affixed machinery by spending huge amount. The possession of the suit land was admittedly handed over by the applicant to the plaintiffs and there is no negative covenant or recital in the agreement which bars the nonapplicants from carrying-out any commercial activity on the suit land/suit premises. Therefore, at this stage, the applicant/defendant has failed to show any prima facie case in his favour. The balance of convenience also does not lie in favour of the applicant/defendant as greater inconvenience is likely to be caused to the plaintiffs/non applicants by granting injunction in favour of the applicant/defendant. As the relief sought for by the applicant/defendant in the counter-claim is

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only for the recovery, therefore, no irreparable loss and injury will be caused to the applicant/defendant, as in case the counter-claim succeeds, the applicant/defendant can always be compensated in terms of money and in case injunction is granted, the non-applicants/plaintiffs would suffer irreparable loss and injury since they would not be able to utilize the property till the final disposal of the suit. Thus, the applicant/defendant has failed to satisfy all the three ingredients for the grant of injunction.

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Hence, in view of what has been discussed hereinabove, the instant application, which sans merits, deserves dismissal and is accordingly dismissed.

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Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the same has been given only for the purpose of deciding the present application. The application stands disposed of.

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( Sushil Kukreja ) Judge

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14^th May, 2026

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(virender)

Mamta and Another v. Ashok Kumar

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