Case Note & Summary
The appellant, Sanjay Suganchand Kasliwal, proprietor of Kasliwal Construction, filed an Appeal from Order under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908, challenging the order dated 4th May 2023 passed by the 8th Joint Civil Judge, Senior Division, Aurangabad, in Special Civil Suit No. 123 of 2022. The trial court had rejected the appellant's application for temporary injunction under Order 39 Rules 1 and 2 CPC, seeking to restrain the respondents from creating third party rights over the suit property. The appellant had filed the suit for specific performance of an agreement to sell dated 15th March 2018 allegedly executed by respondent no. 2, Santosh Shantilal Muthiyan, in favour of the appellant. The appellant claimed that he was put in possession of the suit property and that the respondents were trying to alienate it. The respondents opposed the injunction, contending that the agreement was vague, the property description was incomplete, and the appellant was never in possession. The trial court, after hearing both sides, held that the appellant failed to make out a prima facie case for injunction as the agreement did not clearly identify the property and possession was not proved. The appellate court, after considering the submissions of the advocates for the parties, upheld the trial court's order, finding no perversity or error of law. The court emphasized that the grant of temporary injunction is discretionary and the appellate court should not interfere unless the order is perverse or based on wrong principles. The appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Temporary Injunction - Prima Facie Case - Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 - The court held that for grant of temporary injunction, the plaintiff must establish a prima facie case, balance of convenience in his favour, and irreparable loss. In the present case, the plaintiff failed to show a strong prima facie case as the agreement to sell was ambiguous regarding the property description and possession was not delivered. (Paras 1-10) B) Specific Relief - Agreement to Sell - Specific Performance - Section 38 of the Specific Relief Act, 1963 - The court observed that the plaintiff's suit for specific performance was based on an agreement that did not clearly identify the property and the plaintiff was not put in possession. Hence, no injunction could be granted to protect alleged possession. (Paras 11-20) C) Civil Procedure - Appeal from Order - Interference with Discretionary Order - The appellate court noted that the trial court's order refusing injunction was a discretionary order and unless perverse or based on wrong principles, the appellate court should not interfere. The trial court had correctly applied the law and facts. (Paras 21-30)
Issue of Consideration
Whether the appellant/plaintiff is entitled to a temporary injunction restraining the respondents/defendants from creating third party rights over the suit property pending disposal of the suit for specific performance of an agreement to sell.
Final Decision
The appeal is dismissed. The order dated 4th May 2023 passed by the 8th Joint Civil Judge, Senior Division, Aurangabad, rejecting the temporary injunction application, is upheld. No order as to costs.
Law Points
- Specific performance
- Temporary injunction
- Prima facie case
- Balance of convenience
- Irreparable loss
- Order 39 Rule 1 and 2 CPC
- Section 38 Specific Relief Act
- 1963
