Case Note & Summary
The appellants, who are the plaintiffs in the suit, filed an appeal against the order of the trial court rejecting their application for temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908. The appellants had entered into an agreement to sell dated 22.12.2008 with the respondents for purchase of a property in Goa. They paid substantial consideration and were put in possession of the property. The respondents later attempted to dispossess them, leading to the suit for specific performance and permanent injunction. The trial court rejected the injunction application on the ground that the agreement was not proved and that the appellants had not made out a prima facie case. The High Court held that the trial court had erred in going into the merits of the case at the stage of injunction. The court found that the appellants had made out a prima facie case as they were in possession and had paid consideration. The balance of convenience was in favor of granting injunction to maintain status quo. The court also held that irreparable loss would be caused to the appellants if injunction was not granted. Accordingly, the appeal was allowed and the trial court's order was set aside. The respondents were restrained from dispossessing the appellants or creating third party rights over the suit property pending disposal of the suit.
Headnote
A) Civil Procedure - Temporary Injunction - Prima Facie Case - Order 39 Rules 1 and 2 CPC - The court held that the appellants had made out a prima facie case for grant of temporary injunction as they were in possession of the suit property and had paid substantial consideration under the agreement to sell. The trial court's finding that the agreement was not proved was held to be premature at the stage of injunction. (Paras 10-15) B) Specific Performance - Agreement to Sell - Possession - Section 55 of the Transfer of Property Act, 1882 - The court noted that the appellants were put in possession of the suit property pursuant to the agreement to sell and had been in possession for over 10 years. The balance of convenience was in favor of granting injunction to protect their possession pending disposal of the suit. (Paras 16-20) C) Civil Procedure - Injunction - Irreparable Loss - Order 39 Rules 1 and 2 CPC - The court found that if the injunction was not granted, the appellants would suffer irreparable loss as they would be dispossessed from the property and the suit for specific performance would become infructuous. (Paras 21-25)
Issue of Consideration
Whether the trial court erred in rejecting the application for temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908, in a suit for specific performance of an agreement to sell and permanent injunction.
Final Decision
Appeal allowed. The order of the trial court rejecting the temporary injunction is set aside. The respondents are restrained from dispossessing the appellants or creating any third party rights over the suit property pending disposal of the suit.
Law Points
- Specific performance
- temporary injunction
- prima facie case
- balance of convenience
- irreparable loss
- Order 39 Rules 1 and 2 CPC
- Section 55 of the Transfer of Property Act
- 1882
