TMI Blog2003 (8) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of the agreement of sale dated 17.4.1998 executed between the petitioners and the respondents for a sale consideration of ₹ 70 lakhs in respect of the suit properties and the respondents paid ₹ 50,000/- to the petitioners towards advance. On knowing fully well that the respondents could not enforce the terms of agreement, they have chosen to file the suit for bare injunction when the efficacious remedy is available to them to file the suit for specific performance and as such, the suit is barred under Order 7 Rule 11(d) of C.P.C. by virtue of Section 41(h) of the Specific Relief Act. 4. The said contention is refuted by the respondents by contending that the respondents' possession was conceded in various proceedings in the said suit and consequently, the interim injunction was granted in I.A.No.1104 of 1998 and upheld through the order in C.M.A.No.4 of 1999 filed by the respondents. In pursuance of a compromise entered into between them, the respondents have also withdrawn the suit for specific performance in O.S.No.113 of 1999 on the file of Sub Court, Dharapuram and since the suit is for bare injunction to protect the permissive possession and legal po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fendants by virtue of the agreement of sale which has been admitted by the defendants in various proceedings and as such, the defendants cannot interfere with the plaintiffs' possession. He would further contend that the plaintiffs have specifically averred in paragraph 10 of the plaint that they have reserved their right to file a separate suit for specific performance and as such, for seeking the relief of bare injunction to protect the permissive possession or legal possession, Section 41(h) of the Specific Relief Act would not stand in the way. The decisions cited by him are as follows: 1) BHAGWAN DAS v. GOSWAMI BRIJESH KUMARJI 2) BRITISH AIRWAYS v. ART WORKS EXPORT LTD. AIR1986Cal120 ; 3) WILSON CHEMICALS v. M/S.PIDILITE INDUSTRIES LTD. 1990(2) L.W.368; 4) NARENDRA KUMAR JAIN C. SUKUMAR CHAND JAIN AIR1994All1 ; 5) KHAJA QUTHUBULLAH v. GOCT. OF ANDHRA PRADESH AIR1995AP43 ; 6) STATE OF ORISSA v. KLOCKNER CO. AIR1996SC2140 ; 7) CHHAGANLAL JAIN v. HAMID SULTAN (1998 M.L.J.(SUPPLEMENT) 428); 8) ASHWINKUMAR K.PATEL v. UPENDRA J.PATEL AIR1999SC1125 ; 9) V.S.ACHUTHANANDAN v. P.J.FRANCIS [1999]2SCR99 ; 10) CRESCENT PETROLEUM LTD. v. M.V. MONCHEGORSK ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , against that order, the defendants filed civil revision petition in C.R.P.No.3283 of 1999. (D) At that stage, there were talks of settlement between the parties. The defendants gave consent to allow both the applications for injunction against alienation and against disturbance of possession in the suit for specific performance in O.S.No.113 of 1999. In pursuance of the said settlement, C.R.P.No.3283 of 1999 was dismissed as not pressed on 29.11.1999. Similarly, both the injunction applications in the suit for specific performance were allowed on consent by the order dated 31.1.2000. (E) In pursuance of the said agreement, a supplementary agreement was entered into between the parties with modified terms on 15.2.2000. Thereafter, the defendants executed 12 sale deeds in favour of the plaintiffs and their nominees in respect of one portion of the suit properties. On 7.8.2000, C.M.A.No.4 of 1999, which was filed by the plaintiffs was allowed on consent of the defendants and C.M.A.No.2 of 1999 filed by the defendants against the order of alienation was dismissed as not pressed. These were done only in pursuance of the terms of compromise entered into between the parties earlie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill not be a bar as the allegation in the plaint as well as the materials placed before the Court would involve breach of trust which is an exception to the bar contained in Section 41(h). 16. Therefore, at this stage, as the trial Court finds, this Court is unable to say that Section 41(h) would apply to the present case, especially in the light of the fact that the plaintiffs have reserved their right to file a separate suit for specific performance as averred in paragraph 10 of the plaint. 17. Further, as admitted by the parties, the first sale agreement was entered into between the parties on 17.4.1998 and subsequently, on 15.2.2000, another supplementary agreement termed as compromise sale agreement was executed by both the parties. In pursuance of the said agreement, though interim injunction was not granted initially in I.A.No.1104 of 198 in respect of the plaintiffs' possession, the same was granted by the appellate Court in C.M.A.No.4 of 1999 on the basis of the consent of the defendants. 18. As held by the Supreme Court in AIR1999SC1125 (supra), irrespective of the title, if the plaintiff had the permissive possession and the defendants were not in posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case as well. 21. Further, it is admitted by the counsel for both the parties that on 4.12.2001, the plaintiffs filed another suit in O.S.No.362 of 2001 in the Sub Court, Dharapuram for specific performance and the same is pending. As a matter of fact, though the similar suit was filed earlier in O.S.No.113 of 1999 and obtained interim orders of injunction in respect of possession and also in respect of alienation in I.A.Nos.508 of 1999 and 509 of 1999, the said suit was withdrawn on 9.2.2001 in pursuance of the supplementary agreement. 22. It is noticed that due to the subsequent development, the plaintiffs filed another suit in O.S.No.362 of 2001 and however, they have not chosen to file any interim application praying for injunction in respect of possession and alienation, probably for the reason that the plaintiffs already obtained the said interim orders in the present suit in O.S.No.296 of 1998 on the file of the District Munsif Court, Dharapuram. 23. Under those circumstances, it would be appropriate to give suitable direction in order to ensure both the suits, namely O.S.No.296 of 1998 and O.S.No.362 of 2001 can be tried together for the convenience of the partie ..... 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