Case Note & Summary
The appellant, original defendant no.1, owned a flat. On 6 June 2008, he allegedly agreed to sell it to the respondent no.1 (plaintiff) for Rs.40 lakh, receiving Rs.1 lakh by cheque and Rs.15 lakh in cash on that day, with the balance payable before registration by September 2008. Subsequently, the defendant no.1 agreed to sell the same property to defendant no.2. The plaintiff filed a suit for permanent injunction restraining the defendants from dispossessing him without due process of law, and took out a Notice of Motion for temporary injunction. The defendant no.1 contested, denying any agreement or receipt of consideration, claiming the agreement was forged. The trial court allowed the Notice of Motion and granted temporary injunction against defendant no.1. The defendant no.1 appealed. The High Court considered whether a suit for injunction simpliciter is maintainable when the plaintiff claims possession under an agreement for sale and the more efficacious relief of specific performance is available. The appellant argued that under Section 41(h) of the Specific Relief Act, 1963, injunction cannot be granted if an equally efficacious relief is available, and since the plaintiff did not seek specific performance, the suit for injunction alone was not maintainable. The respondent contended that the suit was for injunction to protect possession and that specific performance was not necessary. The High Court held that when a plaintiff claims possession based on an agreement for sale, the appropriate and more efficacious relief is specific performance of the contract. A suit for injunction simpliciter without seeking specific performance is not maintainable, and temporary injunction cannot be granted in such a suit. The court allowed the appeal, set aside the trial court's order, and dismissed the Notice of Motion.
Headnote
A) Specific Relief Act - Injunction - Section 41(h) - Bar to Injunction - Where a plaintiff claims possession based on an agreement for sale, the more efficacious relief is specific performance of contract. A suit for injunction simpliciter without seeking specific performance is not maintainable, and temporary injunction cannot be granted in such a suit. The court held that Section 41(h) of the Specific Relief Act, 1963 prohibits injunction when an equally efficacious relief is available. (Paras 4-6) B) Civil Procedure - Temporary Injunction - Maintainability - A plaintiff who has not filed a suit for specific performance cannot claim temporary injunction to protect possession under an agreement for sale. The court held that the trial court erred in granting temporary injunction as the plaintiff had an alternative remedy of specific performance. (Paras 5-6)
Issue of Consideration
Whether a suit for injunction simpliciter is maintainable when the plaintiff claims possession based on an agreement for sale and the more efficacious relief of specific performance is available, and whether temporary injunction can be granted in such a suit.
Final Decision
The appeal is allowed. The order dated 21.04.2010 passed by the learned Judge, City Civil Court in Notice of Motion No. Ex.2 of 2008 is set aside. The Notice of Motion stands dismissed. Rule made absolute accordingly. Civil Application No.193 of 2012 also stands disposed of.
Law Points
- Section 41(h) Specific Relief Act
- 1963 bars injunction when equally efficacious relief of specific performance is available
- suit for injunction simpliciter not maintainable without seeking specific performance
- temporary injunction cannot be granted in such suit
