Case Note & Summary
The appellant, Smt. Manisha Kode, challenged an order dated 24.01.2023 passed by the Civil Judge Senior Division, Aurangabad in Special Civil Suit No.1186 of 2022, whereby an injunction was granted restraining her from creating third party interest in the suit property during the pendency of the suit. The respondent, Madanlal Desarda, had filed the suit for specific performance of an agreement to sell dated 17.06.2002. Earlier, a Regular Civil Suit No.113/2014 for specific performance had been dismissed, and an appeal (Regular Civil Appeal No.287 of 2016) was pending before the Ad-hoc District Judge-2, Aurangabad. During the pendency of that appeal, the plaintiff filed the new suit alleging that the defendant was attempting to alienate the property. The trial court granted the injunction, which was challenged in this appeal. The High Court held that the plaintiff had made out a prima facie case, the balance of convenience was in his favor, and he would suffer irreparable loss if the injunction was not granted. The court dismissed the appeal, upholding the trial court's order.
Headnote
A) Civil Procedure - Injunction - Specific Performance - Order 39 Rules 1 and 2 CPC - The court upheld the trial court's order restraining the defendant from creating third party interest in the suit property pending disposal of the suit for specific performance of contract. The court found that the plaintiff had a prima facie case, balance of convenience was in his favor, and he would suffer irreparable loss if injunction was not granted. (Paras 1-10)
Issue of Consideration
Whether the trial court was justified in granting an injunction restraining the defendant from creating third party interest in the suit property during the pendency of the suit for specific performance.
Final Decision
The High Court dismissed the Appeal from Order, upholding the trial court's order dated 24.01.2023 granting injunction against the appellant.
Law Points
- Injunction
- Specific Performance
- Balance of Convenience
- Prima Facie Case
- Irreparable Loss
Case Details
2023 LawText (BOM) (08) 22
Appeal from Order No. 25 of 2023
Mr. Mahesh S. Deshmukh (holding for Mr. Sanket S. Kulkarni) for appellant; Mr. A.P. Bhandari for respondent
Smt. Manisha w/o. Balkrushna Kode
Shri. Madanlal s/o. Uttamchand Desarda (through GPA Shri Anurag s/o. Devendra Desarda)
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Nature of Litigation
Appeal from Order challenging an interim injunction granted in a suit for specific performance of contract.
Remedy Sought
The appellant (original defendant) sought to set aside the injunction order dated 24.01.2023 passed by the Civil Judge Senior Division, Aurangabad.
Filing Reason
The appellant challenged the trial court's order granting injunction restraining her from creating third party interest in the suit property.
Previous Decisions
Regular Civil Suit No.113/2014 for specific performance was dismissed; Regular Civil Appeal No.287 of 2016 is pending before the Ad-hoc District Judge-2, Aurangabad.
Issues
Whether the trial court was justified in granting an injunction restraining the defendant from creating third party interest in the suit property during the pendency of the suit for specific performance.
Submissions/Arguments
The appellant argued that the trial court erred in granting the injunction as the plaintiff did not have a prima facie case.
The respondent argued that the injunction was necessary to protect his interest pending the appeal in the earlier suit.
Ratio Decidendi
The court held that the plaintiff had established a prima facie case, the balance of convenience was in his favor, and he would suffer irreparable loss if the injunction was not granted. The trial court's order was therefore justified.
Judgment Excerpts
By the present Appeal from Order, the appellant is challenging the order dated 24.01.2023 passed by the Civil Judge Senior Division, Aurangabad in Special Civil Suit No.1186 of 2022 in Exh.5 application, whereby the Civil Judge Senior Division clamped injunction against the present appellant – original defendant, directing the defendant not to create third party interest in the suit property during pendency of the Special Civil Suit No.1186 of 2022.
Procedural History
The respondent filed Regular Civil Suit No.113/2014 for specific performance, which was dismissed. An appeal (Regular Civil Appeal No.287 of 2016) is pending. During the pendency of that appeal, the respondent filed Special Civil Suit No.1186 of 2022 seeking injunction, which was granted on 24.01.2023. The appellant challenged that order in the present Appeal from Order.
Acts & Sections
- Code of Civil Procedure, 1908: Order 39 Rules 1 and 2
