Srinivasan, J.@mdashThe first respondent has filed the suit C.S. No. 1557 of 1995 for specific performance of an agreement dated 14.5.1991
entered into with respondents 2 to 5. Pending the suit, he has prayed for injunction in O.A. No. 1109 of 1995 restraining the respondents as well
as the appellant from interfering with his possession of the suit land. The learned single Judge has granted the prayer and the aggrieved 5th
defendant in the suit is the appellant before us.
2. The appellant disputes the case of the plaintiff and also contends that there was an agreement for sale of the suit property in his favour in 1991
and to enforce the same, he filed suit C.S.No. 65 of 1994 in this Court. A compromise was entered in the suit and a decree was passed in terms
of the compromise. According to the appellant, he was put in possession of the said property even under his agreement of sale and he had even
erected a fence around the property. It is his further case that at the time of the compromise, it was found that a portion of the property agreed to
be sold to him was already sold by respondents 2 to 5 herein in favour of one V.G. Natarajan and instead of that portion, another portion was
substituted and agreed to be sold to him under the compromise decree. Thus, according to him he is in possession of the suit property throughout
and no injunction can be granted in favour of the plaintiff.
3. It is submitted by learned Counsel for the appellant that an additional counter affidavit was filed before the single judge in which a reference has
been made to a lease of the land in favour of one Vijaya Kumar who was in possession till 1993 having an industry in the said property. According
to the additional counter-affidavit, the said lessee surrendered possession to respondents 2 to 5 and thereafter, they handed over possession to the
appellant herein.
4. The only question which is relevant at this stage is whether the plaintiff is in possession of the property in order that an injunction may be granted
in favour of the Plaintiff as prayed for by him. No doubt, learned Counsel raised three other contentions before us. The first contention is that the
suit is barred by limitation as the agreement in favour of the plaintiff was entered in May, 1991 and the suit has been filed in September, 1995.
Secondly, it is contended that the property which is the subject matter of the suit is not available for sale to the plaintiff as the appellant has already
got a decree in C.S. No. 65 of 1994 in his favour. The third contention is that the document under which the plaintiff makes a claim is a false
document and even the original is not produced before the court and, therefore, no relief can be granted to the plaintiff as the plaintiff has not come
to court with clean hands.
5. We cannot entertain contentions 1 and 3 at this stage as they are matters to be decided only at the trial. As regards the contention of the
document being a false one, it is admitted that no notice was given by the appellant to the plaintiff to produce the original document for inspection
and the contention is raised in this Court before us for the first time. In the counter-affidavit filed by the appellant, no such contention was put
forward as regards the genuineness of the agreement under which the plaintiff claims. On the other hand, the only averment is that the appellant is
not in a position to say anything clearly about the agreement of the plaintiff. In that situation, we have not permitted the counsel for the appellant to
raise the contention as to the genuineness of the document before us for the first time, particularly because, we are only at the interlocutory stage. It
is open to the appellant to put forward such a contention before the trial court in his written statement.
6. The contention that the property is not available for specific performance is again to be decided only at the trial stage. According to the plaintiff,
his agreement is earlier and he was put in possession even prior to the agreement. In the affidavit filed in the application, the plaintiff has stated
clearly that even before entering into the agreement, possession of the land was given to the plaintiff and he erected a fence. It is his case that the
property was in his possession and he was enjoying it without any hindrance. No doubt, the appellant had denied that averment. On the other
hand, the contention of the appellant is that he was put in possession at the time of his agreement in his favour. But, this contention is belied by the
decree obtained by the appellant in C.S. No. 65 of 1994. The agreement between the appellant on the one hand and respondents 2 to 5 on the
other contains a recital that possession was given to the appellant under the agreement. But, at the stage of compromise, it was found that a portion
of the property having been sold to another person by name Natarajan, the parties agreed that it will be substituted by another portion of the
property. The compromise decree is passed with reference to property which is agreed to be sold under the compromise. There is a specific
clause in the decree that possession of the said property shall be delivered to the plaintiff in the suit. That clause reads as follows:
That the defendants herein do execute and register the sale deed in favour of the plaintiff herein in respect of the property more fully set out in the
Schedule A hereto and the portion marked A, B, G, H in the plan annexed hereto, and deliver over possession of the said property to the plaintiff
herein.
It was very clear from that clause that the appellant herein was not in possession at the time of the compromise decree. If he had been in
possession, he would not have agreed for such a clause being introduced in the decree. He would have insisted upon his possession being
recognised and acknowledged by the compromise as well as the decree. He not having done so, the case of the appellant cannot be accepted at
this stage without any further evidence from him that he is in actual possession. Such evidence can be adduced by him only at the stage of trial.
7. The learned single Judge has placed reliance on the recital in the compromise decree and come to the conclusion that prima facie, the appellant
has not proved his possession and on the other hand, the possession of the plaintiff is proved by prima facie evidence. The learned Judge having
exercised his discretion properly on the basis of the materials placed before him, we do not find any justification whatever to interfere with the
order granting injunction.
8. Learned Counsel for the appellant places reliance on the judgment of a single Judge of this Court in Ramaswamy Gounder v. Venkatachelam
and Ors. 1995 T.L.N.J. 434 and a judgment of Division Bench of this Court in S.S. Chokkalingam v. R.B.S. Mani and Ors. (1994) 1 L.W. 32.
The proposition laid down in both the cases is that a person who comes to court with a false plea is not entitled to the equitable relief of specific
performance. In both the cases, the question arose at the time of trial. The reports show that those cases arose on appeals after decrees were
passed at the end of trial. When the court had entire evidence before it, it could come to the conclusion that the case of the plaintiff was false and,
therefore, he was not entitled to specific performance. But, that stage has not come in the present case. We are still at the interlocutory stage. We
cannot assume that the case of the plaintiff is false or that the agreement put forward by the plaintiff is not a genuine document.
9. As regards the case of lease in favour of Vijaya Kumar put forward by the appellant, it is pointed out by learned Counsel for the plaintiff that the
additional counter affidavit was served on her only just before the arguments before the learned single Judge and she had no opportunity, to file a
reply thereto. However, she is able to point out from the description of the property found in the copy of the lease deed produced by the appellant
that the property which Was subject matter of lease was different from the property which is the subject matter of the agreement in favour of the
plaintiff .On a reading, it is quite apparent that the property cannot be same. But, it is a matter for evidence to be adduced by the appellant in the
trial to show that the same property was the subject matter of lease, if he chooses to raise such a plea.
10. In the circumstances, we do not find any merit in the appeal. Hence, it is dismissed. No costs. The observations made by us in the order will
not have any bearing at the time of trial in the suit and the trial Judge will not be influenced in any manner thereby.
