IMPORTANT POINT
Where the plaintiff claims the possession on the basis of part performance of agreement for sale, his remedy is to file suit for specific performance and suit for injunction simplicitor is not tenable.

J.H. Bhatia, J.—Rule. Rule made returnable forthwith. With the consent of the learned counsel for both the parties, the appeal is heard forthwith.

2. The appeal is preferred by the original defendants challenging the order dated 21.04.2010 passed by the learned Judge, City Civil Court in Notice of Motion whereby the defendants are restrained from dispossessing the plaintiff from the suit flat.

3. The plaintiff-respondent No.1 contended that the defendant No.1, appellant is the owner of the suit flat. On 6th June, 2008 the defendant No.1 agreed to sell the suit flat to the plaintiff for consideration of Rs.40 lac. Out of the consideration amount, a sum of Rs.1lac was paid by cheque on the said date and amount of Rs.15 lac was paid in cash on that day. Balance amount was to be paid on or before September 2008 before registration of the agreement. According to the plaintiff, subsequent to the contract with the plaintiff, defendant No.1 agreed to sell the property to defendant No.2. Therefore, the plaintiff filed suit for the permanent injunction restraining the defendants from dispossessing the plaintiff from the suit flat without following due process of law. The plaintiff also took out Notice of Motion for temporary injunction of the same nature. Defendant No.1, contested the Notice of Motion denying that there was any agreement for sale between him and the plaintiff. He also denied to have received any amount of consideration from the plaintiff. According to him, the agreement is a forged document. After hearing parties, learned trial Court allowed the Notice of Motion and granted temporary injunction against defendant No. 1.

4. Learned counsel for the defendant/appellant vehemently contended that when the plaintiff claims possession of the suit property on the basis of the agreement for sale, he could not have filed suit for injunction simplicitor because equally, rather more, efficacious relief of specific performance of contact is available to him. He contends that had the plaintiff filed the suit for specific performance of the contract he could have claimed the relief of injunction and also temporary injunction pending the suit, but when he has not filed suit for specific performance of the contract, in view of Section 41(h) of the Specific Relief Act, the injunction cannot be granted and therefore in such a suit temporary injunction also cannot be granted. In support of his contention learned counsel placed reliance upon Mathurabai Kadu Koli and Ors v. Roopchand Lalji Koli and Anr., 2000(1) Bom. C.R. 133. On the other hand the learned counsel for the plaintiff contended that agreement for sale between the plaintiff and defendant No.1 was subject to realization of certain cheques and consent terms to be filed in earlier suit No. 509 of 2008 filed by defendant No.1 against his vendor Zia Safruddin Ali and as per the consent terms, the defendant No.1 was entitled to retain as well as to dispose of the suit premises. The deal between the plaintiff and defendant No.1 would be subject to realization of the cheque and consent terms of suit No. 509 of 2008. From the said agreement, it is clear that defendant No.1 was entitled to retain the suit property and also to dispose of the same. In such circumstances, the plaintiff claims have entered into contract to purchase the suit property from defendant No.1 for consideration of Rs. 40 lac. Out of which, an amount of Rs.16 lac was allegedly paid by him. Defendant No.1 denies receipt of money as well as execution of the agreement. That defence need not be taken into consideration at this stage. According to the plaintiff, the balance of amount Rs.24 lac was to be paid on or before September, 2008 at the time of registration of the agreement for sale. According to him, as per clause ‘h’ of the terms of the said agreement defendant No.1 had handedover possession of the suit flat to the plaintiff, and on that basis he is in possession. He contends that after he had entered into