Case Note & Summary
The Petitioner, Sanjay Thakkar, was Defendant No.2 in Special Civil Suit No.144 of 2016 filed by Respondent No.1, Bhojja Shantu Shetty, for enforcement of an agreement of sale dated 30 December 2015. The suit sought amalgamation and allotment of Shop Nos.9 and 10 by Defendant No.2 to the Plaintiff. During the pendency of the suit, the Plaintiff filed an application for temporary injunction to restrain Defendant No.2 from creating third party rights over the suit property. On 26 October 2016, when the injunction application was to be heard, Defendant No.2 filed a pursis stating that he intended to keep the position of the suit property as it is till disposal of the application and that he shall not give possession thereof. Based on this pursis, the hearing of the injunction application was adjourned. Subsequently, the Plaintiff discovered that Defendant No.2 had already created third party rights in respect of the suit property prior to the pursis. The Plaintiff filed an application under Order 39 Rule 2A of the Code of Civil Procedure, 1908 (CPC) for striking out the defence of Defendant No.2 for alleged breach of the undertaking. The Trial Court (2nd Joint Civil Court, Senior Division) rejected the application on 2 January 2018, holding that the undertaking was not a formal injunction order and that the breach was not willful. The Plaintiff appealed to the District Court, which allowed the appeal on 25 November 2021 and struck out the defence of Defendant No.2. Aggrieved, Defendant No.2 filed the present writ petition. The High Court examined the scope of Order 39 Rule 2A CPC and held that the power to strike out defence is discretionary and should be exercised only in cases of willful and deliberate disobedience of a clear injunction order. The undertaking in the pursis did not amount to an injunction order, and the breach was not willful as the third party rights were created before the undertaking. The High Court further held that the District Court erred in reversing the Trial Court's order without finding that the Trial Court had exercised its discretion arbitrarily or perversely. Accordingly, the High Court allowed the writ petition, set aside the District Court's order, and restored the Trial Court's order rejecting the application for striking out defence.
Headnote
A) Civil Procedure - Striking Out Defence - Order 39 Rule 2A CPC - Willful Disobedience - The court considered whether the defence of Defendant No.2 could be struck out for alleged breach of an undertaking given in a pursis during hearing of temporary injunction application. The High Court held that the power to strike out defence under Order 39 Rule 2A CPC is discretionary and should be exercised only in cases of willful and deliberate disobedience of a clear injunction order. The undertaking in the pursis was not a formal order of injunction, and the breach was not willful as Defendant No.2 had already created third party rights before the undertaking. (Paras 1-13) B) Civil Procedure - Temporary Injunction - Undertaking to Court - The court examined the effect of a pursis filed by Defendant No.2 stating he would not create third party rights till disposal of the injunction application. The High Court held that such an undertaking does not amount to an injunction order under Order 39 Rule 2A CPC, and breach thereof cannot automatically lead to striking out of defence. The Trial Court had rightly rejected the application for striking out defence. (Paras 3-10) C) Civil Procedure - Appellate Court's Interference - The High Court held that the District Court erred in reversing the Trial Court's order without finding that the Trial Court had exercised its discretion arbitrarily or perversely. The appellate court should not substitute its own discretion unless the Trial Court's order is shown to be illegal or improper. (Paras 11-13)
Issue of Consideration
Whether the District Court was justified in allowing the appeal and striking out the defence of Defendant No.2 under Order 39 Rule 2A of the Code of Civil Procedure, 1908, for alleged breach of an undertaking given in a pursis.
Final Decision
The High Court allowed the writ petition, set aside the order dated 25 November 2021 passed by the District Judge-6, Kalyan, and restored the order dated 2 January 2018 passed by the 2nd Joint Civil Court, Senior Division rejecting the Plaintiff's application for striking out the defence of Defendant No.2.
Law Points
- Order 39 Rule 2A CPC
- Striking out defence
- Willful disobedience
- Temporary injunction
- Discretion of court
