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2023 Supreme(Online)(MAD) 32316
MADRAS HIGH COURT
C. SARASWATHI – Appellant
Versus
P.S. SARAVANAN – Respondent
CRP/2391/2017
A suit for mandatory injunction is not maintainable under Section 41(h) of the Specific Relief Act, 1963, when an equally efficacious relief can be obtained by any other usual mode of proceeding, such as a suit for specific performance.
Headnote:
SPECIFIC RELIEF ACT - SECTION 41(H) - SUIT FOR MANDATORY INJUNCTION - MAINTAINABILITY - When a suit for mandatory injunction is based on a receipt for a sum of money for the purpose of execution of an agreement for sale, and the suit does not disclose a cause of action for specific performance, the suit is not maintainable under Section 41(h) of the Specific Relief Act, 1963.
Fact of the Case:
The first respondent filed a suit for mandatory injunction against the petitioners, 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 was 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.
Finding of the Court:
The court held that the suit for mandatory injunction was not maintainable under Section 41(h) of the Specific Relief Act, 1963, since the suit did not disclose a cause of action for specific performance. The court further held that the plaint in the suit was liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908.
Issues: Whether the suit for mandatory injunction was maintainable under Section 41(h) of the Specific Relief Act, 1963.
Ratio Decidendi: The court relied on the following principles of law: - Under Section 41(h) of the Specific Relief Act, an injunction cannot be granted when an equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust.- A suit for specific performance is an equally efficacious relief to a suit for mandatory injunction in the present case.- The suit did not disclose a cause of action for specific performance since the agreement for sale was not executed and there was no time limit for specific performance.
Final Decision: The court set aside the order of the lower court and allowed the civil revision petition. The plaint in the suit was rejected.
CRP.No.2391 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.01.2023
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.No.2391 of 2017 and
CMP.No.11513 of 2017
1.C.Saraswathi
2.M.Chinnaraj
... petitioners
Vs.
1.P.S.Saravanan
2.Indian Overseas Bank rep. by its
Branch Manager,
Edayarpalayam Branch,
Edayarpalayam,
Coimbatore 641 025
... Respondents
PRAYER:
Civil Revision Petition filed under Section 115 of CPC to revise and 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.
For Petitioners : Mr.T.Ayyasamy
For Respondents
For R1 : Mrs.Usha
for Mr.Vasudevan
For R2 : No appearance
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CRP.No.2391 of 2017
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
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CRP.No.2391 of 2017
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
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CRP.No.2391 of 2017
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 c
