Introduction:

In Salim Baig v. Sayyad Nawid (Writ Petition No. 13409 of 2023), Justice S. G. Chapalgaonkar of the Bombay High Court considered a challenge to interim injunctions granted by both the trial and appellate courts. The respondent had secured temporary relief restraining the petitioner from disturbing his alleged possession of disputed land, based on an agreement purportedly executed for ₹92.5 lakhs, with ₹22 lakhs paid. That agreement—a notarised tabe‑isar‑pavti or “agreement to sell”—was neither registered nor stamped. The petitioner approached the High Court seeking vacation of the injunction on the ground that such an unstamped, unregistered agreement is inadmissible in law, and thus cannot support injunctive relief.

Arguments of the Respondent:

The respondent argued that the agreement—though unregistered and unstamped—was executed in his favour and ₹22 lakhs was paid. He claimed to be in possession of the suit property and maintained readiness to pay the balance consideration. The lower courts accepted his version that the petitioner had failed to execute the final sale deed despite the respondent’s willingness, and granted interim injunctions to preserve the respondent’s alleged possession, preventing interference or the creation of third‑party rights.

Arguments of the Petitioner:

Contending that the agreement is inadmissible for any legal purpose until properly stamped and impounded under the Stamp Act, the petitioner asserted that the trial and appellate courts erred in entertaining that document even for collateral purposes. Reliance was placed on Section 35 of the Indian Stamp Act, which bars admissibility of chargeable instruments unless fully stamped or governed by proviso (A). Since the agreement was neither stamped nor registered, the petitioner submitted that there was no legal basis for the injunction: no prima facie case, no evidence of possession delivered to the respondent, and no proper transaction record.

Court’s Analysis & Judgment:

Justice Chapalgaonkar meticulously examined the legal consequences of relying on an unstamped, unregistered agreement. Referring to Section 35 of the Stamp Act, the Court held that the bar against admissibility of chargeable instruments is absolute—whether for primary or collateral purposes—unless the conditions of proviso (A) are fulfilled. This means that even if the defendant admits execution, the instrument cannot be acted upon in court until duly stamped and impounded. Accepting execution and part payment does not cure the fundamental inadmissibility of the document.

The Court then assessed the evidentiary record and observed that although the defendant had not denied execution or receipt of ₹22 lakhs, he had emphatically denied delivery of possession to the respondent. Without admissible contents of the agreement, there was no record to demonstrate that possession had in fact passed. Consequently, the trial and appellate courts lacked any lawful basis to ascertain the prima facie case required for granting interim relief.

The lower courts’ reasoning—that the prima facie value or weight of the document could be taken into account at the interim stage—was flawed. The High Court clarified that an inadmissible document cannot be evaluated on its face or value, because it cannot be admitted in evidence at all. Thus, the material required to support an injunction under Order 39 Rules 1 & 2 CPC—thus establishing a prima facie case, balance of convenience and irreparable injury—did not exist on record.

Accordingly, the writ petition was allowed in part. The High Court modified the injunction orders by vacating the restraint on interference with the respondent’s alleged possession, essentially removing protection which had no legal foundation.