Case Note & Summary
The appeal challenges an order dated 11 October 2022 passed by the Extra Joint Civil Judge Senior Division, Nashik, granting temporary injunction in favor of the plaintiff (Respondent No. 1) and directing status quo regarding possession and transfer of the suit property. The appellant (Defendant No. 7) is restrained from transferring the suit property until disposal of the suit. The dispute concerns Plot No. 2 in a layout developed by Thakkar Developers. The plaintiff claimed to have purchased the plot from Defendant Nos. 1 to 6 under an Agreement for Sale dated 28 September 2011, paying Rs. 35,00,000/- initially and further amounts totaling Rs. 71,00,000/-. Possession was allegedly handed over via Possession Receipt dated 26 July 2013. Defendant No. 7 purchased the property from Defendant Nos. 1 to 6 in 2017, allegedly with knowledge of the plaintiff's possession. The Trial Court granted injunction, which Defendant No. 7 appealed. The High Court upheld the injunction, finding a prima facie case, balance of convenience in favor of the plaintiff, and risk of irreparable loss. The appeal was dismissed.
Headnote
A) Civil Procedure - Temporary Injunction - Prima Facie Case - Order 39 Rules 1 and 2, Code of Civil Procedure, 1908 - The court considered whether the plaintiff had made out a prima facie case for grant of temporary injunction. The plaintiff claimed an agreement for sale and possession receipt, which the court found sufficient to establish a prima facie case. (Paras 1-15)
B) Civil Procedure - Temporary Injunction - Balance of Convenience - Order 39 Rules 1 and 2, Code of Civil Procedure, 1908 - The court held that the balance of convenience was in favor of the plaintiff, as the defendant No. 7 had purchased the property with knowledge of the plaintiff's possession and the pending suit. (Paras 16-20)
C) Civil Procedure - Temporary Injunction - Irreparable Loss - Order 39 Rules 1 and 2, Code of Civil Procedure, 1908 - The court found that if the injunction was not granted, the plaintiff would suffer irreparable loss as the property might be transferred to third parties. (Paras 21-25)
Issue of Consideration
Whether the Trial Court's order directing status quo in respect of possession and transfer of the suit property pending disposal of the suit is sustainable in law.
Final Decision
The High Court dismissed the appeal and upheld the Trial Court's order dated 11 October 2022 granting temporary injunction and directing status quo.
Law Points
- Temporary injunction
- prima facie case
- balance of convenience
- irreparable loss
- status quo
- transfer of property
- agreement for sale
- possession receipt
- Civil Procedure Code
- 1908
- Order 39 Rules 1 and 2
Case Details
2023 LawText (BOM) (10) 74
APPEAL FROM ORDER NO. 461 OF 2023 WITH INTERIM APPLICATION NO. 12729 OF 2023
Mr. G.S. Godbole, Senior Advocate a/w. Mr. Yogesh G. Thorat i/by. Mr. Ashok B. Tajane for the Appellant. Mr. Anil Sakhare, Senior Advocate with Mr. S.S. Patwardhan i/by. Mrinal Shelar for Respondent No.1. Mr. Sandeep Shinde i/by. Ergo Juris, for Respondent Nos. 2 to 7.
Citizen Constructions through Proprietor Nisar Ahamad Moharamali Khan
Parvez Mohammed Yusuf Kokani and Ors.
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Civil appeal against an order granting temporary injunction in a property dispute.
Remedy Sought
The appellant (Defendant No. 7) sought to set aside the Trial Court's order directing status quo and restraining transfer of the suit property.
Filing Reason
The appellant challenged the Trial Court's order dated 11 October 2022 granting temporary injunction in favor of the plaintiff.
Previous Decisions
The Trial Court (Extra Joint Civil Judge Senior Division, Nashik) passed an order on 11 October 2022 granting temporary injunction and directing status quo.
Issues
Whether the Trial Court's order granting temporary injunction and directing status quo is sustainable.
Whether the plaintiff has a prima facie case for injunction.
Whether the balance of convenience lies in favor of the plaintiff.
Whether the plaintiff would suffer irreparable loss if injunction is not granted.
Submissions/Arguments
Appellant argued that the plaintiff failed to make out a prima facie case and that the balance of convenience was in favor of the appellant.
Respondent No. 1 argued that the agreement for sale and possession receipt established a prima facie case and that the appellant purchased the property with knowledge of the plaintiff's possession.
Ratio Decidendi
The court held that the plaintiff had made out a prima facie case based on the Agreement for Sale and Possession Receipt, the balance of convenience was in favor of the plaintiff, and the plaintiff would suffer irreparable loss if the injunction was not granted. The appellant's purchase with knowledge of the plaintiff's possession did not entitle him to a better right.
Judgment Excerpts
The Appeal challenges the order dated 11 October 2022 passed by the Extra Joint Civil Judge Senior Division, Nashik on application at Exhibit-5 filed by the Plaintiff-Respondent No.1 for grant of temporary injunction.
By way of temporary injunction, the Trial Court has directed the parties to maintain status-quo in respect of possession as well as transfer.
The Appellant-Defendant No.7 is restrained from transferring the suit property till disposal of the suit.
Procedural History
The plaintiff filed a suit for specific performance and injunction. The Trial Court granted temporary injunction on 11 October 2022. Defendant No. 7 appealed to the High Court. The High Court heard the appeal on 19 October 2023 and pronounced judgment on 31 October 2023, dismissing the appeal.
Acts & Sections
- Code of Civil Procedure, 1908: Order 39 Rules 1 and 2
