The central legal point established in the judgment is that a suit for permanent injunction by an agreement holder who is not in possession of the property is not maintainable under the Specific Relief Act.

1. This revision has been filed under Article 227 of the Constitution India for striking off the suit in O.S.No.288 of 2004 from the file of the District Munsif, Valliyur, on the ground that the suit is not maintainable.

2. The respondents 1 & 2 filed the above suit for an interim injunction, restraining the third respondent from alienating the suit property till the sale agreement is subsisting and restraining the petitioner from commissioning the wind energy electrical generator. Pending suit, respondents 1 and 2 prayed for an interim injunction, restraining the petitioner from commissioning the Wind Mill mentioned above. The Court below gave an interim injunction only with regard to operation of the wind generator. Against this the petitioner herein has filed this revision without filing an appeal which is there remedy against an order passed in an application under Order 39, Rules 1 & 2 and 151 of the Civil Procedure Code.

3. The learned counsel appearing for the petitioner would submit that though there is an appeal remedy, the petitioner have not availed of it because the suit itself is an abuse of process of law and must be struck off from the file. According to the learned counsel, the basis on which the respondents 1 & 2 have filed the suit is the agreement referred to above and even in the; agreement it is clear that possession was not handed over to the respondents 1 and 2. The pleadings also indicate that the third respondent with whom respondents 1 and 2 entered into an agreement were put in possession of the property. The learned, counsel for the petitioner submitted that an agreement holder had no right to seek interim injunction and he was; barred under Section 41(h) of ha Specific Relief Act and therefore, suit must be struck off from the file. He further submitted that if at all the respondents 1 and 2 had a remedy, it was to file a suit for specific performance.

4. The learned counsel for the respondents 1 and 2 submitted that there is an another suit pending, in which, an interim injunction has been obtained restraining the third respondent from alienating the property and for this reason, the respondents 1 and 2 could not file a suit for specific performance. Further it is submitted that under the agreement, six months’ time was given and therefore that was another reason why they could not file the, suit for specific performance. The learned counsel admitted t hat respondents 1 and 2 were not in possession. He submitted further that if interim injunction is not granted, the respondents 1 and 2 would suffer irreparable loss and hardship and would be left with no other remedy.

5. The learned counsel for the respondents relied on the following judgments Kasthuri and 4 others v. Baskaran and another, 2004 (1) L.W. 803, where this Court refused to set aside an order refusing to reject the plaint on an application filed under Order 7, Rule 11, CPC. That case arose in some what similar circumstances. There also the agreement holder has filed the suit for permanent injunction. It was contended by the defendants that in view of the bar contained in Section 41(h) of the Specific Relief Act, the plaint must be rejected. The revision further was dismissed on the ground that the question whether Section 41(h) would apply cannot be decided at that stage.

6. The learned counsel for the respondent also relied on Sadashiv Chander Bhyamgare v. Eknath Pandharinath Nangude, 2004 (4) CTC 465, where the Full Bench of the Bombay High Court held that a suit for permanent injunction by an agreement holder who is in possession of the property is not barred by Section 41(h).

7. Both the above cited decisions will not help the respondents, since in both the cases, the agreement holder was put in possession pursuant to the agreement. In fact, in the Full Bench judgment of the Bombay High Court it has been held. that even though the plaintiffs plea for specific performance may be barred by Law of Limitation, they are en