Meenakshi Ammal vs Sairam and Others

K.A. Swami, C.J.—This Letters Patent Appeal is preferred against the order dated 7.2.1994, passed by the learned single Judge on Civil

Miscellaneous Petition No. 4970 of 1993. All the plaintiffs in the suit O.S. No. 272 of 1988 on the file of Subordinate Judge, Sankari, are the

appellants in the Appeal No. 259 of 1993. The suit was filed for specific performance of an agreement of sale dated 15.7.1984. The appellants in

this L.P.A. has entered into an agreement with one K.A. Shanmugham and K. Sengodan who are respondents 5 and 6 in this L.P.A. agreeing to

sell the suit schedule property. However respondents 5 and 6 herein issued a notice through a lawyer to the appellant herein on 11.7.1985.

demanding the advance amount paid to the appellant herein, pursuant to the aforesaid agreement of sale and also claimed damages. The trial court

has dismissed the suit. One of the grounds on which the trial court has dismissed the suit, is that the agreement has been revoked by the

respondents 5 and 6 herein. Aggrieved by the aforesaid judgment and decree A.S. No. 259 of 1993 is filed. Learned single Judge, on the Civil

Miscellaneous Petition No. 4970 of 1993, filed by the appellants 3 to 6 in Appeal No. 259 of 1993, has granted an order of temporary injunction

on the ground that they are in possession. The point for consideration is whether an order of temporary injunction can be granted in an appeal

arising out of a suit for specific performance which has been dismissed on a ground that the agreement itself had been revoked.

Even assuming that possession was handed over to respondents 2 to 6, pursuant to the agreement the said possession can be protected only on

the basis of the agreement of sale. When the very agreement of sale has been revoked by the party in whose favour the agreement was executed,

the very right to retain that property is lost. They having come into possession, pursuant to part-performance of the agreement of sale, cannot retain

the possession of the property when they themselves have revoked the very agreement itself. That being so, the learned single Judge is not right in

holding that the, appellants therein are entitled to an order of temporary injunction. Mere possession does not entitle a person to an order of

injunction. It must be a lawful possession to which a person claiming injunction is entitled to. In addition to that, there should be balance of

convenience in favour of the person seeking injunction. No doubt, normally in the appeal, against an order of a single Judge passed in exercise of

discretion is not to be interfered with; but in a case where the discretion exercised is contrary to law, it requires to be interfered. In the case on

hand on the undisputed facts, the party is not at all entitled to retain possession of the property, as such the court cannot exercise its discretion, in

his favour. Hence, we are of the view that the appeal is entitled to succeed. It is accordingly allowed. The order under appeal is set aside. The

application filed for temporary injunction is rejected. C.M.P. No. 4970 of 1993 is also dismissed.

The observations made and the finding recorded by us, cannot be considered as affecting the right or claim of the first respondent on the ground

that he is a tenant in occupation of the property in question. It is open to him to agitate such right, if any in accordance with law. In that event this

judgment should not be construed as affecting his right.