1. This revision petition has been filed against the order of the trial court dated 1st December, 1979, whereby the application for dismissing the suit for permanent injunction as having infructuous, was declined.
2. Hans Raj end others, plaintiff-respondents filed a suit for permanent in5unction to the effect that defendant No. 1 Satish Bahadur, who is the owner of suit land, be restrained from selling, mortgaging, leasing, exchanging, Rifting or transferring the same to Des Raj and Romesh Kumar defendants or any other person except the plaintiff because the defendant Satish Bahadur had entered into an agreement to sell the land in dispute to the plaintiffs vide agreement dated 15th April, 1978 which was required to be registered by l3th January, 1979.
3. The present suit was filed on 13th October, 1978. During the pendency of the suit, ad interim order of injunction was a1so passed against the defendants. It was on 27th January, 1979, the defendant-petitioners moved an application under Section 151 of the Civil P. C., in which it was stated that the present suit for permanent injunction which was filed on the basis of agreement dated l5th April, 1978 for which execution of the sale-deed, was to be effected by 13th January, 1979, has now become infructuous in view of the provisions of S. 41(h) of the Specific Relief Act, as an injunction cannot be granted where equally efficacious relief can certainly be obtained by any other mode. It was further stated that if the plaintiffs want to get the relief under the said agreement, they should file a suit for specific performance of the contract. Consequently, it was prayed that the present suit for permanent injunction be dismissed as having become infructuous. This was contested on behalf of the plaintiffs and the trial Court after hearing the learned counsel for the parties, came to the conclusion that the plaintiffs cannot be compelled to file a suit for specific performance of the contract before the expiry of three years period which will expire on 12th January, 1982. According to the trial Court, the suit can become infructuous after that date but till then the suit for permanent injunction could not be dismissed as having become infructuous. Feeling aggrieved against this order, the defendant Satish Bahadur has filed this petition in this Court,
4. The learned counsel for the petitioner contended that in view of the provisions of Section 41(h) of the Specific Relief Act, the present suit for permanent injunction restraining the defendant-petitioner to alienate the suit property has become infructuous after 13tH January, 1979, when the plaintiffs have become entitled to file a suit for specific performance of the contract. Section 41(h) reads as under:--
'When equally efficacious relief can certainly be obtained 6y any other usual mode of proceeding except in case of breach of trust'.
In support of this contention. he has relied upon M/s. Jawahar Theatres Private Ltd. v. Smt. Kasturi Bai, AIR 1961 Madh Pra 102; Pasupuleti Venkateswarlu v. Motor & General Traders, AIR 1975 SC 1409 and Sardari Mal v. Hirde Nath, AIR 1925 Lah 459 (2).
5. After hearing the learned counsel for the petitioner, I find force in his submissions. It has been wrongly held by the trial Court that since the plaintiff has not three years period from l3th January, 1979; to file a suit for specific performance of the contract, and, therefore, the present suit for permanent injunction cannot be dismissed as having become infructuous. The whole approach seems to be wrong and illegal. In the present case, what is to be seen is whether the suit for permanent injunction can continue when the relief for specific performance of the contract under the agreement, on the basis of which the present suit for permanent injunction has been filed, has become available to the plaintiffs. Admittedly, after 13th January, 1979, the plaintiffs are entitled to claim the relief for specific performance of the contract. Since the plaintiffs are entitled to another equally efficacious relief, the present suit for permanent injunction cannot proceed, because an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceedings. In the present suit the Court is not concerned with the limitation of three years for filing the suit for specific performance of the contract. The sole question to be decided is whether the present suit for permanent injunction can. continue when an equally efficacious relief has. become available to the plaintiffs during the pendency of the suit. It cannot be disputed that the subsequent events after the institution of the suit can always be taken into consideration while deciding the matter in controversy. Reference in this respect can be made to Pasupuleti Venkateswarlu's case (AIR 1975 SC 1049) (supra). In this view of the matter, the order of the trial Court is illegal and liable to be set aside in this revision petition.
6. For the reasons recorded above this petition succeeds, and the impaled order is set aside. It is further directed that the plaintiffs may be given an option to amend the plaint if they are so advised, failing which the present suit for permanent injunction will stand dismissed as having become infructuous. Since there is no representation on behalf of the respondents, the parties will bear their own costs.
7. Revision allowed.