K.S. Balasubramaniam vs S. Munuswamy

Plaintiff''s in O.S.No.158 of 1998 on the file of the District Munsif''s Court, Chingleput, is the revision petitioner.

It is the case of the plaintiff''s that he has obtained an agreement for sale from the defendant who is the owner of the property. It is also said that

the defendant in spite of various demands made by the plaintiff, has not come forward to execute the document and he has been evading to

perform his part of contract for one mason or other. It was also contended that right from May, 1998, the defendant has been attempting to sell the

property in favour of 3rd parties for higher price and has been evading registration of sale deed in favour of the plaintiff. It is also said that the

plaintiff has also expressed his readiness and willingness to take the sale deed and even approached the defendant on 11.5.1998 to have the

transaction completed, but the defendant was again evading to have the document executed. The suit was therefore laid for a decree of permanent

prohibitory injunction against the defendant, restraining him from alienating the property in favour of any person and. to award costs.

In the written statement filed by the defendant, he denied that he has executed any agreement for sale and the so called agreement is only

created or fabricated by the plaintiff. He also averred that he has not attempted to sell the property since there is no necessity for him to sell the

same,

Alongwith the suit, plaintiff filed I.A.No. 755 of 1998 to get a temporary injunction to restrain the defendant from alienating the property, A

counter-affidavit was also filed by the defendant, reiterating his contentions that the agreement is fabricated and he is not intending to sell the

property to anyone.

The trial court as per order dated 22.6.1998, allowed the application. It held that the plaintiff has proved a prima facie case and it is further

found that there is a case which has to be fought out in trial and consequently, the status quo has to be maintained, an interim order was granted.

Against the order, defendant preferred C.M.A.No.25 of 1998 on the file of the Additional Subordinate Judge''s Court at Chengalpattu. The

lower appellate court held that the application itself is not maintainable and the injunction application was dismissed. The lower appellate court held

that the plaintiff has not proved a prima facie and apart from the same, the present suit is barred u/s 41(h) of the Specific Relief Act. The lower

appellate court held that no ground is made out for grant of injunction and consequently, the application itself was dismissed by allowing appeal.

It is against the said judgment, plaintiff has preferred this revision.

Since caveat was entered by the respondent, I heard the revision at the admission stage itself.

While considering the prima facie, the Court will have to consider, whether the suit itself is maintainable. u/s 41(h) of the Specific Relief Act, an

injunction cannot be granted ""when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of

breach of trust"".

In this case, the plaintiff has admitted that he has obtained an agreement for sale and he is always ready and willing to take the sale deed. He

also wanted the defendant to perform his part of the contract His contention is, since the defendant has committed breach of his obligations, he is

now compelled to file a suit for a decree of permanent prohibitory injunction. The cause of action is also stated to be that the defendant is

attempting to sell the property in favour of the 3rd parties and in spite of demand by the plaintiff to have the document executed, the defendant

evaded in completing the transaction. It is not disputed by the plaintiff himself that in case of breach of obligation, the suit for specific performance

is the remedy that is available under law. It is also not his case that the remedy for specific performance is not an equally efficacious remedy.

In The Municipal Corporation of Delhi Vs. Shri Suresh Chandra Jaipuria and Another, , of the judgment, their Lordships held thus:

It also seems that the attention of the learned Judge was not directed towards Section 41 (h) of the Specific Relief Act, 1965, which lays

down that an injunction, which is a discretionary equitable relief, cannot be granted when an equally efficacious relief is obtainable in any other

usual mode or proceeding except in cases of breach of trust. Learned Counsel for the appellant Corporation points out that there was the ordinary

machinery of appeal, u/s 169 of the Delhi Municipal Corporation Act, 1957, open to the assessee respondent. It had not even been found that the

respondent was unable to deposit the necessary amount before filing the appeal. However, we abstain from deciding the question whether the suit

is barred or not on this ground. All we need say is that this consideration also has a bearing upon the question whether a prima facie case exists for

the grant of an interim injunction. (Italics supplied)

In Sushil Kumar and Anr Vs. Ram Prakash and Ors, , some of the coparceners filed a suit against the Manager of the family for a decree of

permanent prohibitory injunction, restraining, from alienating the property. In that case also the karta had entered into an agreement for sale and the

purchaser also filed a suit for getting specific performance of the agreement. The coparceners filed a suit to restrain the karta from executing deed.

While considering the same, the Hon''ble Supreme Court held in paragraphs 7 and 8 thus:

At the outset it is to be noticed that in a suit for permanent injunction u/s 58 of the Specific Relief Act by a coparcener against the father or

Manager of the joint Hindu family property, an injunction cannot be granted as the coparcener has got equally efficacious remedy to get the sale set

aside and recover possession of the property. Sub-section (h) of Section 41 of Specific Relief Act bars the grant of such an injunction in the suit.

Secondly, the plaintiff-respondents brought this suit for permanent injunction restraining their father, defendant 1, from selling or alienating the

property to defendant 2 or any other person and also restraining defendant 2 from proceeding with the suit for specific performance of the

agreement to sell pending in the civil court. Thus the relief sought for is to restrain by permanent injunction the karta of the joint Hindu Mitakshara

family, i.e. defendant 1 from selling or alienating the house property in question. Defendant 1 as karta of the joint Hindu family has undoubtedly, the

power to alienate the joint family property for legal necessity or for the benefit of the estate as well as for meeting antecedent debts. The grant of

such a relief will have the effect of preventing the father permanently from selling or transferring the suit property belonging to the joint Hindu

Undivided Family even if there is a genuine legal necessity for such transfer. If such a suit for injunction is held maintainable the effect will be that

whenever the father as karta of the joint Hindu coparcenary property will propose to sell such property owing to a bona fide legal necessity, any

coparcener may come up with such a suit for permanent injunction and the father will not be able to sell the property for legal necessity until and

unless that suit is decided.

The judgment in Shiv Kumar Mool Chand Arora v. Mool Chand Jaswant Ram Arora wherein it was held that a suit for permanent injunction

against the father to restrain him from alienating the joint Hindu family property was maintainable has been Offset by the Division Bench in Jujhar

Singh v. Giani Talok Singh where it has been held that suit for permanent injunction by a coparcener against the father for restraining him from

alienating the house property belonging to the joint Hindu family for legal necessity was not maintainable because the coparcener had got the

remedy of challenging the sale and getting it set aside in a suit subsequent to the completion of the sale. Following this decision the High Court

allowed the appeal holding that the suit was not maintainable reversing the judgment and decree of the trial court. We do not find any infirmity in

the findings arrived at by the High Court."" (Italics supplied)

In that case, their Lordships said. that even if a document is executed, the remedy of the coparceners to have the document set aside and the

suit for permanent injunction is not maintainable. In a concurrent judgment rendered by their Lordships, Justice J.Shetty took the same view which

is stated in paragraph 29 of the judgment. It reads thus:

The provisions of Section 38 to be read along with Section 41 Section 41 provides that an injunction cannot be granted in the cases falling

under clauses (a) to (j). Clause (h) thereunder provides that an injunction cannot be granted when a party could obtain an efficacious relief by any

other usual mode of proceeding (except in case of breach of trust). The coparcener has adequate remedy to impeach the alienation made by the

karta. He cannot, therefore, move the court for an injunction restraining the karta from alienating the coparcenary property. It seems to me that the

decision of the Punjab and Haryana High Court in Jujhar Singh v. Giani Talok Singh has correctly laid down the law. There it was observed at

p.348:

If it is held that such a suit would be competent the result would be that each time the manager or the karta wants to sell property, the coparcener

would file a suit which may take number of years for its disposal. The legal necessity or the purpose of the proposed sale which may be of pressing

and urgent nature, would in most cases be frustrated by the time the suit is disposed of. Legally speaking unless the alienation in fact is completed

there would be no cause of action for any coparcener to maintain a suit because the right is only to challenge the alienation made and there is no

right recognised in law to maintain a suit to prevent the proposed sale. The principle that an injunction can be granted for preventing waste by a

manager or karta/ obviously would not be applicable to such a suit because the proposed alienation for an alleged need of the benefit of the estate

cannot be said to be an act of waste by any stretch of reasoning. We are, therefore, of the considered view that a coparcener has no right to

maintain a suit for permanent injunction restraining the manager or the karta from alienating the coparcenary property and his right is only to

challenge the same and to recover the property after it has come into being.

Courts while issuing permanent or temporary injunctions, must act in a careful and conservative manner and grant the relief only in situations

which so clearly call for it so as to make its refusal work real and serious hardship and injustice. If the Court is satisfied that the circumstances of

the case do not entitle the grant of a perpetual injunction, a temporary injunction has perforce to be refused. One of the pre-requisites for the grant

of injunction is that the party seeking relief must establish the right that he claims. If a right is being asserted which is not justiciable, no injunctive

relief can be given either temporarily or permanently Union of India (UOI) Vs. Bakhshi Amrik Singh, .

In Mohammad Yasin and another Vs. Mohammad Yasin and others, , a Division Bench of that Court, in similar circumstances, in para 12 of

the judgment have held thus:

Section 41(h) of the Specific Relief Act lays down that an injunction cannot be granted when equally efficacious relief can certainly be

obtained by any other usual mode of proceeding. The usual mode of proceeding obviously is a suit for specific performance of contract and

necessary relief can be obtained through such suit. In this view of the matter, in this suit for perpetual injunction only, no relief of injunction can be

granted, muchless the temporary injunction sought for. We, therefore, do not consider it expedient to look to the question whether the agreement

to sell the land in dispute is alive or has come to an end or whether time was the essence of the contract and whether the plaintiff-appellant has the

means and is ready and willing the purchase at cetera"".

In Satish Bahadur Vs. Hans Raj and Others, also, a similar view was taken.

Counsel for the petitioner submitted that the respondent herein moved an application before the lower court in I.A.No.712 of 1998 to hear the

maintainability of the suit as a preliminary issue and the same was dismissed. It is further submitted that the question was taken to this Court in

C.R.P.No.750 of 1999. Learned Judge also dismissed the revision. Learned Judge while dismissing the revision held that it is not a fit case where

the preliminary issue could be taken up at this point of time and consequently dismissed it. On the basis of this order, an argument was taken that

the respondent has agitated the very same question in another way and got defeated and the present contention could not be entertained before this

Court. I do not find any merit in the submission. The trial court only held that the maintainability of the suit cannot be decided as a preliminary issue

and that view was confirmed by this Court also. For the grant of an injunction, whether permanent or temporary, the grounds are entirely different.

The plaintiff will have to show a prima facie case, balance of convenience and also irreparable injury for the grant of temporary injunction. In the

case of perpetual injunction, provisions of Section 38 of the Specific Relief Act provide for the same. Section 38 of the Act also will have to be

considered along with Section 41 of the Act. While considering the grant of temporary injunction, if the Court feels that prima facie, the suit itself is

not maintainable since the decree for permanent injunction cannot be granted in view of the bar u/s 41(h) of the Act, it cannot be said that the

plaintiff has got a prima facie case.

The lower appellate court was therefore right in holding that the plaintiff is not entitled to get - injunction.

In the result, the C.R.P. is without merit and the same is dismissed with costs. Connected C.M.P. is also dismissed.