Bombay High Court
Mathurabai Kadu Koli & Others vs Roopchand Lalji Koli & Another on 31 March, 1999
Equivalent citations: 2000(1)BOMCR133, 1999 A I H C 3785, (2000) 2 CURCC 248, (1999) 3 ALLMR 409 (BOM), (2000) 1 BOM CR 133
Author: S.B. Mhase
Bench: S.B. Mhase
ORDER S.B. MHASE, J.
1. The main question which is raised in this Civil Revision Application by the petitioners is whether the suit simpliciter for injunction is maintainable on the basis of the possession which is acquired by the plaintiff under section 53-A of the Transfer of Property Act, without filing a suit for specific performance of the contract and in such a suit, whether application for temporary injunction under Order 39, Rules 1 & 2 of the Code of Civil Procedure is tenable.
2. The facts in brief are as under. Regular Civil Suit No. 632 of 1988 has been filed by the plaintiff/respondent No. 1 in the Court of the Civil Judge, Junior Division, Jalgaon claiming a perpetual injunction as against the petitioners and the respondent No. 2 i.e. defendants in respect of the Survey No. 708/11, which is now part of Gat No. 2311. There were three brothers, namely Kadu, Manga and Onkar. Manga and Onkar are defendants No. 3 and 4. Kadu had expired and Mathurabai and Devidas are respectively wife and son of Kadu, who are defendants No. 1 & 2. Deceased Kadu and defendant No. 3 Manga were having l/3rd share and their l/3rd share they agreed to sell to the plaintiff by an agreement to sell on 1-11-1978 for consideration of Rs. 1,000/-. The entire amount of Rs. 1,000/- was paid and that the plaintiff/ respondent No. 1 claims that he is cultivating the said land since the day of agreement. It is further alleged that on 16th September, 1988, there was an obstruction and, therefore, the suit was filed for perpetual injunction and in the said suit the application at Exh. 6 was submitted for temporary injunction under Order 39, Rules 1 & 2 of the Code of Civil Procedure. The Trial Court rejected the said application. The said order was challenged by the plaintiff/respondent No. 1 by filing Misc. Civil Appeal No. 19 of 1989. Said appeal was decided by the 3rd Additional District Judge, Jalgaon on 6th December, 1989. Appeal was allowed and temporary injunction was issued against the defendants No. 1 to 3 i.e. the petitioners. Said order is challenged by this Civil Revision Application.
3. The learned Counsel Shri Bora, appearing for the petitioners submitted that the suit filed by the respondent No. 1 is a simpliciter suit for injunction, when in fact, the plaintiff/respondent No. 1 should have filed a suit for specific performance of agreement and in the said suit should have claimed a perpetual injunction. He submitted that when the plaintiff gets possession of the land by way of an agreement to sell i.e. in part performance of agreement, then in that eventuality the moment that possession is obstructed, it amounts to breach of agreement to sell and, therefore, the proper remedy for the plaintiff is to file a suit for specific performance of a contract and perpetual injunction. Suit simpliciter for perpetual injunction without claiming any relief of a specific performance is not tenable. He relied upon 1986(1) Bombay Cases Reporter 533 Yeshwantrao v. Khushall, and Hussain Khan v. Shaikh Ahmed. He further submitted that the law laid down in Laxman v. Pandharinath, is not a good law. He submitted that if such a suit is not maintainable, then in that eventuality, the interim application for temporary injunction or any other interlocutory application in the said suit will not be tenable.
4. No doubt, the present plaintiff/respondent No. 1 has obtained the possession of the suit land by way of a part performance of an agreement on 1-11-1978 and that the amount of consideration has been paid by the plaintiff. However, the sale deed was to be executed after obtaining the necessary permission from the revenue authorities for executing the said sale deed as per the agreement to sell. These facts point out that since 1978 if the plaintiff/respondent No. 1 is in possession of the land, as to why the permission was not obtained for a period of ten years and if there was avoidance on the part of the defendants to get such a permission. The plaintiff/respondent No. 1 should have insisted for the performance of the said contract. It appears that till 1988 no progress was made. And the averments in respect of this aspect have not been made. However, the moment the plaintiff's possession was questioned in 1988, in fact, that amounted to denial of and/or breach of the agreement to sell and, therefore, the cause of action which takes place on such a occasion is not a cause of action simpliciter for suit of injunction, but a cause of action for filing the suit for specific performance and, therefore, such a plaintiff is supposed to file a suit for specific performance and perpetual injunction. It is very difficult to digest that there will be a separate cause of action for the purposes of suit of injunction and for suit of specific performance of contract. If the cause of action in that eventuality is one and the same, namely, the denial of agreement or violation of breach of agreement, then to permit the filing of two suits on the same cause of action is against the principles of the Code of Civil Procedure, because the law requires that all those reliefs based on same cause of action should be pleaded and claimed in the same suit and shall not be claimed by separate suit. One more aspect is that section 41(h) of the Specific Relief Act, states that the Court shall not grant perpetual injunction when there is an equally efficacious remedy available to a parry. Equally efficacious remedy in which the injunction can be claimed is a full-fledged suit for specific performance with perpetual injunction. This Court in 1986(1) Bombay Cases Reporter 533 (supra) has observed thus:
"Clause (e) of section 41 of the Specific Relief Act is relevant to the extent and in the context of the provisions of section 53-A of the Transfer of Property Act, which requires the plaintiff to satisfy that he was ready and willing to perform his part of the contract. It is only when such readiness and willingness is there that the contract or agreement for sale can be specifically enforced. If this basic readiness and willingness is not established, then the performance could not be specifically enforced. If follows, therefore, that by reason of the principle underlying section 41(e) of the Specific Relief Act, when the plaintiff seeks injunction so as to prevent breach of a contract whose performance cannot be specifically enforced, such an application has to be refused. Similarly, when a suitor of such a type would have equally efficacious relief available so as to enforce the contract by taking appropriate remedy, without recourse to it, it would be indeed difficult to extend the discretionary relief of permanent injunction. It is not as if that in a suit to enforce the agreement itself, such a relief is sought. On the other hand, although the plaintiff came to the Court with the allegation that the other party has repudiated the agreement for sale, he has omitted to seek its enforcement and is trying to hold the property obviously without seeking to complete his title by enforcing the agreement for sale. To such a case, the principle underlying Clause (h) of section 41 of the Specific Relief Act can be extended so as to refuse such an ancillary relief."
The above referred judgment has been followed by the Single Judge of this Court in (supra), wherein it has been observed that the suit filed simpliciter for injunction where the claim is founded purely to claim the protection under section 53-A of the Transfer of Property Act is not maintainable. Such a suitor is not entitled to claim relief in view of the provisions of section 41(h) of the Specific Relief Act.
5. My attention was also invited to (supra), wherein it has been observed:
"A person who enters into possession lawfully on the basis of agreement of sale can maintain a suit for injunction simpliciter without adding a prayer for specific performance of the agreement. It was more so when in instant case, plaintiff had issued notices after notices to defendant expressing his readiness and willingness to pay the balance of the amount and also that nothing transpired subsequently which made that lawful agreement unlawful by the occurrence of any subsequent event.
In such a case, when an application for permission to sell the land before the revenue authorities was disposed of due to absence of defendant, the defendant cannot turn round and contend that it was the plaintiff who was in fault for not obtaining the permission of sale of land/Moreover, in such a case, the fact that if a suit for specific performance was filed by the plaintiff, it would be dismissed on the ground of bar of limitation is no ground for holding that the plaintiff's initial legal possession has converted itself into an illegality. Moreover, provisions of section 27 of the Limitation Act have no application to such suit. May be that the plaintiff's right to file the suit for specific performance is barred but the substantive right is not extinguished. Section 27 of the Limitation Act refers to a suit for possession, not to a suit for specific performance. If a suit for possession is barred by limitation, the very substantive right in respect of the property is extinguished. But that is not the position when the suit is not required to be filed only for possession but only for specific performance.
However, the remedy for injunction is an equitable remedy. If plaintiff wants the injunction, the Court should see to it that the equitable remedy of injunction should not be made available to the plaintiff unless he pays the balance of the amount to the defendant."
This judgment is not a good law, because 1986(1) Bombay Cases Reporter 533 (supra) is a judgment of the Division Bench of this Court which was already reported. This Division Bench judgment was not pointed out to the Single Judge who decided the case , because I do not find any reference to the Division Bench judgment made by the said Judge. However, the fact remains that this judgment of the Single Judge of this Court is contrary to the Division Bench of this Court and therefore, it is not a good taw. (supra) has followed the Division Bench referred to above and that is in accordance with the law laid down.
6. Therefore, on final analysis, it is settled position that the suit simpliciter to protect the possession on the basis of principles laid down under section 53-A of the Transfer of Property Act, without claiming the relief of specific performance of contract or agreement is not tenable in law and naturally, therefore, the Court is not supposed to pass any interim reliefs or interlocutory reliefs in favour of the plaintiff in such a suit and accordingly the question stated at the beginning is answered.
7. In the result, the Civil Revision Application is allowed. The order dated 6-12-1989 passed by the 3rd Additional District Judge, Jalgaon in Misc. Civil Appeal No. 19 of 1989 is hereby quashed and set aside. Rule is made absolute accordingly. There shall be no order as to costs.
8. Revision allowed.