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suit for permanent injunction is tenable even though suit fo

Suit for permanent injunction is tenable even though suit for specific performance is not filed

It is thus clear that in such a situation where a suit for a decree for specific performance is barred by the Law of Limitation, the prospective purchaser in possession would not be in a position to institute a suit for decree of specific performance, but Section 53-A creates an equity in his favour, as a result of which he is entitled to continue in possession. If it is held that though his possession is protected, he cannot institute a suit in case he finds that his possession has been threatened would amount to denying a remedy for enforcing the equity which is created in his favour by Section 53-A. In a case where the prospective purchaser has a live cause of action for instituting a suit for specific performance, he omits to institute such a suit, and instead files a suit only for perpetual injunction for protection of his possession, in that situation it is for the Court to consider whether to grant him a decree of perpetual injunction or not But that will be in the realm of exercise of the jurisdiction. It will not be a case of absence of jurisdiction to entertain the suit. Therefore, we find that there is nothing in Specific Relief Act also which can be said to have barred the jurisdiction of the Civil Court to take cognizance of such a suit even by necessary implications.

Bombay High Court
Sadashiv Chander Bhamgare vs Eknath Pandharinath Nangude on 16 April, 2004
Equivalent citations: AIR 2004 Bom 378, 2004 (4) CTC 465, 2004 (3) MhLj 1131
Author: D Deshmukh
Bench: R Lodha, D Deshmukh, J Devadhar





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