ENERCON (INDIA) LIMITED Vs. J T MICHEAL ANJALO

JUDGEMENT

(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.