A suit for permanent injunction is not maintainable if it does not include a claim for specific performance of the agreement.

ORDER

This civil revision has been preferred by the applicants/defendants 1-2 challenging the order dated 14.10.2022 passed by 9^th Civil Judge Junior Division, Bhopal in RCSA/825/2022, whereby learned Court below has dismissed defendants 1-2/applicants’ application under Order 7 Rule 11 CPC, on the ground that the objection raised on behalf of the defendants can be decided only after recording evidence.

2. Learned counsel for the applicants/defendants submits that the plaintiff/respondent 1 has instituted a suit for permanent injunction putting valuation of Rs.1,000/- seeking prayer for restraining the defendants from raising construction over the suit land on the basis of agreement of sale dated 08.01.2019 and undisputedly till now no suit for specific performance has been filed on the basis of agreement in question. As such, he submits that the suit, as filed, is not maintainable and the plaint is liable to be rejected under Order 7 Rule 11 CPC.

3. In support of his submissions learned counsel for the applicants placed reliance on the decision of a coordinate Bench of Madras High Court in the case of R. Chendilvel vs. G. Damodaran and others AIR 2015 MADRAS 96 and submits that the suit being not maintainable, the plaint deserves to be rejected. Relevant paragraph 18 of this judgment is quoted as under:-

“18. In a suit for specific performance of agreement for sale, there could be ancillary relief of interim injunction, not to alienate or encumber the property, detrimental to the rights of the agreement holder till the disposal of the suit. However, without seeking the main relief of specific performance or seeking return of the advance amount and paying necessary Court fee, according to law, the first respondent / plaintiff would not be entitled to file a suit, seeking permanent injunction against the proposed vendor, not to alienate or encumber the property and seek leave to file a comprehensive suit at later stage, namely, suit for specific performance. The Court below, has mechanically allowed the petition, by one word order "Permitted", which shows only the non-application of mind. As the first respondent / plaintiff has claimed right, based on an agreement of sale, the main relief could be seeking specific performance of agreement for sale and for which, he could have been ready and willing to perform his part of the contract, by paying the balance of sale consideration. However, it is seen that the suit has been filed by the first respondent, seeking only permanent injunction restraining the owner of the land, not to alienate or encumber the property. Hence, permitting the first respondent / plaintiff to file a suit in the name of comprehensive suit at a later stage should be construed only permitting the first respondent to circumvent the law, by not filing proper suit, based on the alleged agreement of sale.”

4. Learned counsel appearing for the respondent 1/plaintiff does not dispute the aforesaid facts in relation to filing of the suit for permanent injunction on valuation of Rs.1,000/- on the basis of agreement of sale in question. However, he supports the impugned order with the submission that learned trial Court has rightly rejected the application under Order 7 Rule 11 CPC.

5. Heard learned counsel for the parties and perused the record.

6. A copy of agreement of sale dated 08.01.2019 placed on record shows that the property in question is agreed to have been sold by the defendant 1-Sharda Bai to the plaintiff for consideration of Rs.50,00,000/- (Fifty lakhs), out of which an amount of Rs.48,50,000/- is said to have been paid previously, and the sale deed is agreed to be executed within one year from th