ORDER

This civil revision petition has been filed to set aside the order dated

27.04.2017 passed in IA.No.1521 of 2016 in OS.No.860 of 2014 by the I Additional District Munsif, Coimbatore, thereby dismissed the petition for rejection of plaint filed under Order VII Rule 11 of CPC.

2. Heard, the learned counsel for the petitioners and the learned counsel for the first respondent.

3. The petitioners are defendants 1 & 2 in the suit filed by the first respondent for mandatory injunction restraining them from creating any cloud over the title of the suit property till the agreement dated 05.11.2008 with the first respondent is cancelled as per law or acted upon it by the first defendant. The case of the first respondent is that the petitioners herein approached the first respondent to sell the suit property along with another property. Both agreed and entered into an agreement for sale on 05.11.2008. As per the agreement, the sale consideration was fixed at Rs.15,00,000/- and the first petitioner received a sum of Rs.5,00,000/- from the first respondent on 05.11.2008. Subsequently, she received a further sum of Rs.10,00,000/- and also made endorsement on 19.12.2008 to that effect. Thus, the first respondent had paid the entire advance amount of Rs.15,00,000/- to purchase the suit property. However, the first petitioner failed to come forward to execution of the sale or to enter into the proposed sale agreement. They informed that they would sell the properties and share the profits with the first respondent. Thereafter, they also paid a sum of Rs.8,00,000/- to the first respondent at various periods. Thereafter, they stopped payment and also did not come forward either to proceed with the said agreement or to cancel it. After causing statutory notice, the first respondent filed suit.

4. While pending the suit, the petitioners filed application for rejection of plaint on the ground that based upon the receipt dated 05.11.2008, the first respondent filed suit. The first respondent failed to file a suit for alleged breach of contract dated 05.11.2008. Instead of that, he filed suit for mandatory injunction restraining the petitioners from creating any cloud over the suit property. Such a prayer is also hit and prohibited in the Specific Relief Act under Section 41(h) and (i) since the petitioners have every right to deal with the property. There is no agreement to sell the property between the parties. There is no agreement between them with regards to fixation of price of the suit property. There is no time limit for even specific performance. However, it was dismissed for the reason that the provisions under Section 41(h) of the Specific Relief Act would not be attracted since the averments made in the plaint are mixed question of law and fact and it has to be gone into by fullfledged trial.

5. The only point for consideration is that whether the suit is maintainable or not? Under Section 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”.

6. This court held in the case of K.S.Balasubramanian Vs.

S.Munuswamy reported in 2000 (II) CTC 417 referring the judgment of the Hon'ble Supreme Court of India in the case of Delhi Municipality Vs. Suresh Chandra reported in AIR 1976 SC 2621, 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 poceeding except in cases of breach of trust. 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, much less the temporary injunction sought for. Further held that in the case of perpetual injunction, provisions of Section 38 of the Specific Relief Act provide for the