DATE OF JUDGEMENT:
This judgement elucidates Section 54, Illustration (o) of the Specific Relief Act, 1877. Injunctions under this section are granted when the court is satisfied that the applicant has a prima facie case to go to trial, that protection is necessary from irreparable injury before his legal right can be established, the mischief or inconvenience likely to arise from withholding injunction will be greater than which is likely to arise from granting it. It is well settled that there can be no injunction for actionable wrongs for which damages are proper remedy.
The plaintiffs, who are appellants in the present case, filed the suit for permanent injunction to prevent the defendants from taking the disputed property. The defendants responded by filing a written statement challenging the allegations made in the plaint. It was argued that the defendants are in possession and that the prayer for an injunction should not be maintained.
The trial court noted that the sale of property in question was genuine and for consideration but plaintiffs did not have the possession at the time of filing of the suit. And hence, the suit was dismissed. In first appeal, the findings of trial court were affirmed and therefore, plaintiffs filed, second appeal.
Whether a decree for permanent injunction can be granted having regard to the principles contained in Illustration-(o) to Section 54 of the Specific Relief Act,1877?
Section 54, Illustration(o) Specific Relief Act, 1877- A, the owner of certain houses in Calcutta, becomes insolvent. B buys them from the official assignee, and enters into possession. A persists in trespassing on and damaging the houses and B is thereby compelled at considerable expense to employ men to protect the possession. B may sue for an injunction to restrain further acts of trespass.
The High court held that it can be clearly seen through the Illustration(o) of Section 54 that there is no applicability of this section over facts and circumstances of the present case. Court opined that it is well-established that in order to obtain a permanent injunction, the plaintiff must prove that he or she is in possession. In view of the findings that the plaintiffs are not in possession, the suit for permanent injunction must be rejected.
The Plaintiff's side submitted that the plaintiff-appellants may introduce a prayer for recovery of possession in order to avoid further litigation.
The learned counsel for the respondents argued that such an amendment should not be entertained in the second appellate stage because the defendants claimed that they had adverse possession of the disputed property but the courts did not determine it. In case court allows amendment of prayer of recovery of possession into the plaint, the claim of the defendants relating to adverse possession must also be determined.
Court directed the trial court to allow the plaintiffs to file a petition for an amendment of the plaint in order to recover possession and further decide upon the question relating to the plea of adverse possession of the defendants.
The court held that an appropriate issue shall be formulated and the parties shall be given time to adducing evidence on that issue. The order was subjected to the plaintiffs paying Rs. 300 to Mr. J.K. Mishra, counsel appearing for the Defendant-respondents in this Court, if not paid within a month, amendment may be recalled and suit will stand dismissed.
Further it was ordered that the matter be disposed of immediately as it can be, preferably within four months. If prayer for possession is made, the plaintiffs are required to pay the ad valorem court fee.
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