Judgment : Plaintiff in O.S.No.103 of 1956 on the file of Principal District Munsif, Kumbakonam is the revision petitioner herein. 2. Plaintiff is thecontractor and it was employed by defendants for putting up construction in the property. It is the case of plaintiff that construction is mostly over. But misunderstanding arose between parties and defendant did not pay the amount due to plaintiff. It is his further case that for the purpose of storing materials for putting up construction, plaintiff was entrusted with possession of the property and in view of misunderstanding, defendant is interfering with his possession. Plaintiff also apprehends that defending is going to engage another contractor for completing the construction. Plaintiff further alleges that defendant is not entitled to commit breach of contract and he has to be prevented from doing so by a decree of permanent prohibitory injunction. The relief sought for in the plaint reads thus: “to pass a decree of permanent injunction restraining the defendants, his men, servants, legal representatives or anybody claiming through him from in any way dispossessing the plaintiff from the suit property building constructing contractor except under due process of law until complete the remaining works in the suit property and settle the due amount to the plaintiff…” 3. Along with the suit plaintiff filed I.A.No.188 of 1996 to restrain defendant form disturbing with his possession and also from engaging another contractor. 4. Trial court as per order dated 13. 1998 allowed the injunction application. Trial court was of the view that plaintiff has proved the ingredients under O.39, Rule 1 of Code of Civil Procedure and consequently it will be entitled to get injunction. 5. Aggrieved by the order of trial court, defendant preferred C.M.A.No.13 of 1998 on the file of Subordinate Judges Court, Kumbakonam. Lower appellate court held that the injunction application is not maintainable and the remedy of plaintiff is only to either sue for specific performance or to sue for damages and both the suit and injunction application are barred by Sec.41 of the Specific Relief Act. Lower appellate court also held that plaintiff has got other effective remedy under Law and the application for injunction is misconceived. Lower appellate court further held that plaintiff also not proved the ingredients of O.39, Rule 1 of Code of Civil Procedure to obtain order of injunction. The appeal was allowed and injunction application was dismissed. 6. Lower appellate court also held that plaintiff has got other effective remedy under Law and the application for injunction is misconceived. Lower appellate court further held that plaintiff also not proved the ingredients of O.39, Rule 1 of Code of Civil Procedure to obtain order of injunction. The appeal was allowed and injunction application was dismissed. 6. It is against the said order, plaintiff has preferred this revision petition. 7. Since caveat was entered, I heard the revision itself at the time of admission. 8. Learned counsel on both sides mainly argued only on the maintainability of the injunction application. 9. Sec.41(e) of Specific Relief Act says, that an injunction cannot be granted to prevent the breach of a contract, the performance of which will not be specifically enforced. Sec.41(h) says, where equally efficacious relief can certainly be obtained by any other usual mode of proceedings, except in the case of breach of trust, injunction cannot be granted. Sec.14 of the Act deals with contracts, which are not specifically enforceable. Clause (1) of Sub-sec.(1) of Sec.14 of the Act says that the contract for non-performance of which compensation in money is an adequate relief. cannot be specifically enforced. It is on the basis of these two sections of Specific Relief Act, lower appellate court held that the application for injunction is not maintainable. 10. After hearing counsel on both sides. I feel that the finding of lower appellate court in only proper. 11. InDelhi Municipality v. Suresh Chandra A.I.R. 1976 S.C. 2621 in para,10 their Lordships held thus: “It also seems that the attention of the learned Judge was not directed towards Sec.41(h) of the Specific Relief Act, 1963, which lays down that an injunction which is a discretionary equitable relief, cannot be granted when an equally efficacious relief is obtainable in any other usual mode or proceeding except in cases of breach of trust. Learned counsel for the appellant corporation points out that there was the ordinary machinery of appeal. Under Sec.169 of the Delhi Municipal Corporation Act, 1957, open to the assessee respondent. It had not even been found that the respondent was unable to deposit the necessary amount before filing the appeal. However, we abstain from deciding the question whether the suit is barred or not on this ground. Under Sec.169 of the Delhi Municipal Corporation Act, 1957, open to the assessee respondent. It had not even been found that the respondent was unable to deposit the necessary amount before filing the appeal. However, we abstain from deciding the question whether the suit is barred or not on this ground. All we need say is that this consideration also has a bearing upon the question whether a prima facie case exists for the grant of an interim injunction. [Italics supplied] 12. InSunil Kumar v. Ram Prakash (1988)2 S.C.C. 77 the question came for consideration was whether the coparcener can file a suit for injunction against the manager of a joint Hindu family from alienating the property for which an agreement for sale has already been entered. In paras.7 and 8 of the judgment, their Lordships considered the scope of Sec.38 read with Sec.41(h) of Specific Relief Act, which read thus: ”7. At the outset it is to be noticed that in a suit for permanent injunction under Sec.38 of the Specific Relief Act by a Coparcener against the father or Manager of the joint Hindu family property, an injunction cannot be granted a the coparcener has got equally efficacious remedy to get the sale set aside and recover possession of the property. Sub-sec.(h) of Sec.41 of Specific Relief Act bars the grant of such an injunction in the suit. Secondly the plaintiff-respondents brought this suit for permanent injunction restraining their father, defendant 1, from selling or alienating the property to defendant 2 or any other person and also restraining defendant 2 from proceeding with the suit for specific performance of the agreement to sell pending in the civil court. Thus the relief sought for is to restrain by permanent injunction the karta of the joint Hindu Mitakshara family i.e., defendant 1 from selling or alienating the house property in question. Defendant 1 as Kartha of the Joint Hindu family has undoubtedly, the power to alienate the joint family property for legal necessity or for the benefit of the estate as well as for meeting antecedent debts. The grant of such a relief will have the effect of preventing the father permanently from selling or transferring the suit property belonging to the joint Hindu undivided family even if there is a genuine legal necessity for such transfer. The grant of such a relief will have the effect of preventing the father permanently from selling or transferring the suit property belonging to the joint Hindu undivided family even if there is a genuine legal necessity for such transfer. If such a suit for injunction is held maintainable the effect will be that whenever the father as karta of the joint Hindu coparcenary property will propose to sell such property owning to a bona fide legal necessity, any coparcener may come up with such a suit for permanent injunction and the father will not be able to sell the property for legal necessity until and unless that suit is decided. 8. The judgment in Shiv Kumar Mool Chand Arora v. Mool Chand Jaswant Ram Arora A.I.R. 1972 P. & H. 147 wherein it was held that a suit for permanent injunction against the father to restrain him from alienating the joint Hindu family property was maintainable has been offset by the Division Bench in Jujhar Singh v. Giani Talok Singh Jujhar Singh v. Giani Talok Singh Jujhar Singh v. Giani Talok Singh A.I.R. 1987 P. & H. 34 wherein it has been held that a suit for permanent injunction by a coparcener against the father for restraining him from alienating the house property belonging to the joint Hindu family for legal necessity was not maintainable because the coparcener had got the remedy of challenging the sale and getting it set aside in a suit subsequent to the completion of the sale. Following this decision the High Court allowed the appeal holding that the suit was not maintainable reversing the judgment and decree of the trial court. We do not find any infirmity in the findings arrived at by the High Court. In the concurring judgment rendered by Justice K.Jagannatha Shetty, in para 29 held thus: “The provisions of Sec.38 to be read along with Sec.41. Sec.41 provides that an injunction cannot be granted in the cases falling under clauses (a) to (j). Clause (h) thereunder provides that an injunction cannot be granted when a party could obtain an efficacious relief by any other usual mode of proceeding (except in case of breach of trust). The coparcener has adequate remedy to impeach the alienation made by the karta. He cannot therefore, move the court for an injunction restraining the karta from alienating the coparcenary property. The coparcener has adequate remedy to impeach the alienation made by the karta. He cannot therefore, move the court for an injunction restraining the karta from alienating the coparcenary property. It seems to me that the decision of the Punjab and Haryana High Court in Jujhar Singh v. Giani Talok Singh Jujhar Singh v. Giani Talok Singh Jujhar Singh v. Giani Talok Singh A.I.R. 1987 P. & H. 34 has correctly laid down the law. There it was observed at P.348: If it is held that such a suit would be competent the result would be that each time the manager or the karta wants to sell property, the coparcener would file a suit which may take number of years for its disposal. The legal necessity of the purpose of the proposed sale which may be of pressing and urgent nature, would in most cases be frustrated by the time the suit is disposed of legally speaking unless the alienation in fact is completed there would be no cause of action for any coparcener to maintain a suit because the right is only to challenge the alienation made and there is no right recognised in law to maintain a suit to prevent the proposed sale. The principle that an injunction can be granted for preventing waste by a manager or karta obviously would not be applicable to such a suit because the proposed alienation for an alleged need of the benefit of the estate cannot be said to be an act of waste by any stretch of reasoning. We are, therefore, of the considered view that a coparcener has no right to maintain a suit for permanent injunction restraining the manager or the karta from alienating the coparcenary property and his right is only to challenge the same and to recover the property after it has come into being.” 13. It is not the case of plaintiff that suit for damages is not efficacious remedy. According to defendant plaintiff was never punctual in completing the structure and in fact he has bee over paid. It is only because of the delay and laches on the part of plaintiff construction could not be completed and he also finds fault with plaintiff for various reasons and he does not want plaintiff to continue as contractor. According to defendant plaintiff was never punctual in completing the structure and in fact he has bee over paid. It is only because of the delay and laches on the part of plaintiff construction could not be completed and he also finds fault with plaintiff for various reasons and he does not want plaintiff to continue as contractor. It is admitted that it is for defendant plaintiff is putting up construction on the basis of agreement. When defendant does not want plaintiff to continue as contractor, plaintiff cannot compel or seek direction from court that it should be allowed to be continued as contractor against the wish of defendant. Such a contract cannot be specifically enforced and plaintiff can only sue for damages if it has suffered damages. The remedy is only to file a suit for recovery of damages and not to compel defendant to specifically enforce the agreement. 14. Learned counsel for petitioner submitted that it is in possession of property on the basis of agreement. I do not think that the submission of counsel could be accepted. Petitioner cannot say that he is in possession with right to exclude the owner from property. Plaintiff is allowed only to make use of the site for the purpose of construction and not that possession has been given to him with right to exclude the real owner. At the most he can be treated only as a licensee with an obligation to complete the construction. If it is a case of licence only, he cannot seek injunction against real owner. I do not think that in this case plaintiff cannot be given even the status of licensee and I am only saying that at the most he can only be treated as licensee. Possession is always with defendant and his possession can never be questioned by plaintiff. 15. A similar question came for consideration before Delhi High Court in the decision reported in M/s.G.M.Modi H.R. Centere Medical Science v. Shankar Singh M/s.G.M.Modi H.R. Centere Medical Science v. Shankar Singh M/s.G.M.Modi H.R. Centere Medical Science v. Shankar Singh A.I.R. 1996 Del. 1 there the owner of the land put up hospital for which he entered into a contract. The contractor permitted the labourers to occupy the hutments, raised at site and those persons claimed themselves in possession of the property either through contractor or through hospital. They sought injunction. 1 there the owner of the land put up hospital for which he entered into a contract. The contractor permitted the labourers to occupy the hutments, raised at site and those persons claimed themselves in possession of the property either through contractor or through hospital. They sought injunction. The question was whether they are entitled to get interim relief. Considering the same, learned Judge said that ‘the labourers are only in possession of the premises through the contractors employed by the hospital and they are not even licensees in the term in which the word licence as defined in Sec.52 of the Easements Act is understood. Possession of Plaintiff cannot be characterised on the basis of any lease or licence. They could be in possession only so long as they are doing services. It is only for a temporary period. Whatever way the plaintiffs are inducted in possession of the hutments either through the contractors or by the hospital directly, they do not get any legal right to be in possession and they are at the pleasure of the hospital.” Learned Judge held that plaintiffs therein are not entitled to get injunction. The facts herein are also similar. 16. It is provided under Sec.37 of Specific Relief Act that grant of injunction are regulated by Code of Civil Procedure. 17. InCotton Corporation of India v. United Industrial Bank (1983)4 S.C.C. 625 the question came up for consideration was whether temporary injunction could be granted when the main relief itself is hit by Sec.41 of Specific Relief Act. Considering the same in para.10 of the judgment it is held thus, “Mr.Sen, learned counsel for the respondent-Bank, contended that Sec.41(b) is not at all attracted because it deals with perpetual injunction and the temporary or interim injunction is regulated by the Code of Civil Procedure specially so provided in Sec.37 of the Act. Expression ‘injunction’ in Sec.41 (b) is not qualified by adjective and therefore, it would comprehend both interim and perpetual injunction. It is, however, true that Sec.37 specifically provides that temporary injunctions which have to continue until a specified time or until further order of the court are regulated by the Code of Civil Procedure. But if a dichotomy is introduced by confining Sec.41 to perpetual injunction only and Sec.37 read with O.39 of the Code of Civil Procedure being confined to temporary injunction, an unnecessary gray area will develop. But if a dichotomy is introduced by confining Sec.41 to perpetual injunction only and Sec.37 read with O.39 of the Code of Civil Procedure being confined to temporary injunction, an unnecessary gray area will develop. It is indisputable that temporary injunction is granted during the pendency of the proceeding so that while granting final relief the court is not faced with a situation that the relief becomes infructuous or that during the pendency of the proceeding an unfair advantage is not taken by the party in default or against whom temporary injunction is sought. But power to grant temporary injunction was conferred in aid or as auxiliary to the final relief that may be granted. If the final relief cannot be granted in terms as prayed for, temporary relief in the same terms can hardly if ever be granted. In State of Orissa v. Madan Gopal Rungta A.I.R. 1952 S.C. 12 a Constitution Bench of this Court clearly spelt out the contours within which interim relief can be granted. The court said that ‘an interim relief be granted only in aid of, and as ancillary to, the main relief which may be available to the party on final determination of his rights in a suit or proceeding.” If this be the purpose to achieve which power to grant temporary relief is conferred, it is inconceivable that where the final relief cannot be granted in the terms sought for because the statute bars granting such a relief ipso facto the temporary relief of the same nature cannot be granted. …” [Italics supplied] 18. On the basis of the above decisions I do not think that any ground is made out for interference in the impugned order under Sec.115 of Code of Civil Procedure. Remedy of the plaintiff is not to seek a relief for injunction. If the suit for injunction is not maintainable. Temporary injunction cannot be granted. Decision of lower appellate court in dismissing the injunction application is therefore justified and confirmed. 19. In the result, the revision petition is dismissed. No costs. Consequently, C.M.P.No.22370 of 1999 is also dismissed.