Case Note & Summary
The present appeal arises from an order dated 16.01.2018 passed by the learned Additional Sessions Judge, Wardha, in Regular Civil Appeal No. 24/2017, whereby the trial court allowed an application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 (CPC) and restrained the appellants/original defendants from disturbing the possession of the respondent/original plaintiff over the suit land until the decision of the appeal. The respondent/plaintiff had filed a suit for specific performance of contract and perpetual injunction against the appellants/defendants. The plaintiff claimed that appellant No. 1 had agreed to sell the suit land for a consideration of Rs. 1,72,500/- and had received earnest money of Rs. 45,000/-. An earnest note was executed on 10.06.2004, and according to the plaintiff, he was put in possession of the suit land. The plaintiff alleged that in October 2009, the defendants tried to dispossess him, leading to the filing of the suit. The trial court granted the injunction, which was challenged by the defendants in the present appeal. The legal issues considered were whether the plaintiff had established a prima facie case for grant of temporary injunction and whether the balance of convenience and irreparable loss favoured the plaintiff. The appellants argued that the plaintiff failed to prove his possession and that the earnest note did not evidence any transfer of possession. The respondent contended that the trial court had correctly appreciated the evidence. The court analyzed the requirements of Order XXXIX Rule 1 and 2 CPC and held that the plaintiff must establish a prima facie case, balance of convenience, and irreparable loss. The court found that the plaintiff's claim of possession was based solely on a recital in the earnest note, which was not supported by independent evidence such as revenue records or witnesses. The court also noted that the plaintiff had not produced any document to show that he was in possession. Consequently, the court held that the plaintiff failed to make out a strong prima facie case and that the balance of convenience did not favour the grant of injunction. The court allowed the appeal, set aside the impugned order, and dismissed the application for temporary injunction.
Headnote
A) Civil Procedure - Temporary Injunction - Order XXXIX Rule 1 and 2 CPC - Prima Facie Case - 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 earnest note did not evidence transfer of possession and the plaintiff's possession was not proved by cogent evidence. (Paras 6-10) B) Specific Performance - Possession - Earnest Note - Transfer of Property Act, 1882 - Section 54 - The court observed that mere execution of an earnest note and payment of earnest money does not amount to transfer of possession or title. The plaintiff's claim of being put in possession was not supported by independent evidence and the trial court's finding was based on a mere recital in the earnest note. (Paras 7-9) C) Civil Procedure - Appeal Against Order - Section 104 CPC - The appeal against the order granting injunction was maintainable. The appellate court found that the trial court had erred in granting injunction without proper application of mind to the requirements of Order XXXIX Rule 1 and 2 CPC. (Paras 1-2, 10)
Issue of Consideration
Whether the trial court was justified in granting temporary injunction under Order XXXIX Rule 1 and 2 CPC restraining the defendants from disturbing the plaintiff's possession over the suit land pending disposal of the appeal.
Final Decision
The appeal is allowed. The impugned order dated 16.01.2018 passed below Exh. 5 in Regular Civil Appeal No. 24/2017 by the learned Additional Sessions Judge, Wardha, is set aside. The application under Order XXXIX Rule 1 and 2 CPC filed by the respondent/plaintiff is dismissed.
Law Points
- Order XXXIX Rule 1 and 2 CPC
- Prima Facie Case
- Balance of Convenience
- Irreparable Loss
- Specific Performance of Contract
- Possession
- Injunction
