Case Note & Summary
The appeal arises from a suit filed by the original plaintiff, Smt. Nirmala Dhandukhlal Thakkar, seeking a permanent injunction restraining the appellants (defendants) from interfering with her possession of a flat in Amita Mandir Building, Andheri, Mumbai. The plaintiff claimed possession under an agreement for sale dated 20th December 1995 executed by the original owner, Wallace Floor Mill Company Ltd. The trial court granted a temporary injunction in favor of the plaintiff, which was confirmed by the appellate court. The appellants challenged this order. The High Court examined the legal issue of whether a suit for injunction simpliciter is maintainable when the plaintiff is not in possession and relies on an unregistered agreement for sale. The court held that an agreement for sale does not create any interest in immovable property under Section 54 of the Transfer of Property Act, 1882. A plaintiff who is not in possession cannot maintain a suit for injunction alone; the proper remedy is to seek specific performance or possession. The court found that the plaintiff failed to establish prima facie possession and that the balance of convenience was against granting injunction. Consequently, the High Court set aside the injunction orders and dismissed the suit as not maintainable.
Headnote
A) Civil Procedure - Injunction - Maintainability of Suit - Order 39 Rules 1 and 2, Code of Civil Procedure, 1908 - Suit for injunction simpliciter without seeking specific performance of agreement for sale is not maintainable when plaintiff is not in possession - Held that a plaintiff who is not in possession cannot seek only injunction; must seek possession or specific performance (Paras 10-12). B) Property Law - Agreement for Sale - Transfer of Property Act, 1882 - Section 54 - Agreement for sale does not create any interest in immovable property - Held that an agreement for sale, without a registered conveyance, does not confer title or possession (Para 11). C) Civil Procedure - Injunction - Prima Facie Case - Order 39 Rules 1 and 2, Code of Civil Procedure, 1908 - For grant of temporary injunction, plaintiff must show prima facie case, balance of convenience, and irreparable loss - Held that the trial court correctly found no prima facie case as plaintiff failed to prove possession (Paras 13-15).
Issue of Consideration
Whether a suit for injunction simpliciter is maintainable when the plaintiff is not in possession and seeks to enforce an agreement for sale without seeking specific performance.
Final Decision
Appeal allowed. Impugned orders set aside. Suit dismissed as not maintainable.
Law Points
- Specific performance of agreement for sale
- injunction against interference with possession
- maintainability of suit for injunction without seeking specific performance
- Order 39 Rules 1 and 2 CPC
- Section 54 Transfer of Property Act
- 1882
