MEENAKSHI ANNUAL Vs. SAIRAM

JUDGEMENT

(1.) THIS Letters Patent Appeal is preferred against the order dated 7.2.1994, passed by the learned single Judge on Civil Miscellaneous Petition No.4970 of 1993. All the plaintiffs in the suit O.S. No.272 of 1988 on the file of Subordinate Judge, Sankari, are the appellants in the Appeal No.259 of 1993. The suit was filed for specific performance of an agreement of sale dated 15.7.1984. The appellants in this L.P.A. has entered into an agreement with one K.A.Shanmugham and K.Sengodan who are respondents 5 and 6 in this L.P.A. agreeing to sell the suit schedule property. However, respondents 5 and 6 herein issued a notice through a lawyer to the appellant here in on 11.7.1985. demanding the advance amount paid to the appellant herein, pursuant to the aforesaid agreement of sale and also claimed damages. The trial court has dismissed the suit. One of the grounds on which the trial court has dismissed the suit, is that the agreement has been revoked by the respondents 5 and 6 herein. Aggrieved by the aforesaid judgment and decree A.S.No.259 of 1993 is filed. Learned single Judge, on the Civil Miscellaneous Petition No.4970 of 1993, filed by the appellants 3 to 6 in Appeal No.259 of 1993, has granted an order of temporary injunction on the ground that they are in possession. The point for consideration is whether an order of temporary injunction can be granted in an appeal arising out of a suit for specific performance which has been dismissed on a ground that the agreement itself had been revoked.

(2.) EVEN assuming that possession was handed over to respondents 2 to 6, pursuant to the agreement the said possession can be protected only on the basis of the agreement of sale. When the very agreement of sale has been revoked by the party in whose favour the agreement was executed, the very right to retain that property is lost. They having come into possession, pursuant to part-performance of the agreement of sale, cannot retain the possession of the property when they themselves have revoked the very agreement itself. That being so, the learned single Judge is not right in holding that the appellants therein are entitled to an order of temporary injunction. Mere possession does not entitle a person to an order of injunction. It must be a lawful possession to which a person claiming injunction is entitled to. In addition to that, there should be balance of convenience in favour of the person seeking injunction. No doubt, normally in the appeal, against an order of a single Judge passed in exercise of discretion is not to be interfered with; but in a case where the discretion exercised is contrary to law, it requires to be interfered. In the case on hand on the undisputed facts, the party is not at all entitled to retain possession of the property, as such the court cannot exercise its discretion, in his favour. Hence, we are of the view that the appeal is entitled to succeed. It is accordingly allowed. The order under appeal is set aside. The application filed for temporary injunction is rejected. CM. P. No.4970 of 1993 is also dismissed.