The Supreme Court has observed and held that for seeking relief under Section 38 of the Specific Relief Act, the Plaintiff filing such a suit has to prove that he is in actual possession as on the date of the suit for seeking permanent injunction. This was observed by a bench of Justice R Banumathi and Justice R Subhash Reddy in Balkrishna Dattatraya Galande Versus Balkrishna Rambharose Gupta and Another.

The case of the Appellant was that it was the defendant in a suit filed by the Respondents/Plaintiff in the capacity of a tenant for permanent injunction which was dismissed on the grounds that the Respondents did not produce any relevant documents showing that it had been carrying its business from the suit premises. The First appellant court reversed the judgment of the trial court which was upheld by the High Court.

The Bench agreed with the findings of the trial court and held:

“17. As discussed earlier, in a suit filed under Section 38 of the Specific Relief Act, possession on the date of suit is a must for grant of permanent injunction. When the first respondent-plaintiff has failed to prove that he was in actual possession of the property on the date of the suit, he is not entitled for the decree for permanent injunction.”

The Bench further observed that the First Appellate Court and the High Court had erred in setting aside the judgment of the trial court even after the trial court had based its conclusion on oral and documentary evidences. The Bench further observed the non-payment of the rent by the Respondents/Plaintiff was not taken into consideration by the First Appellate Court and further held:

“15. ……….without paying rent, he cannot have any legitimate right to be in possession of the suit premises. The party seeking injunction based on the averment that he is in possession of the property and seeking assistance of the Court while praying for permanent injunction restraining other party who is alleged to be disturbing the possession of the plaintiff, must show his lawful possession of the property. Having not paid rent for more than fifteen years, it cannot be said that possession of the first respondent-plaintiff can be said to lawful possession entitling him to grant of permanent injunction.”

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