Case Note & Summary
The appeal arose from a judgment of a learned Single Judge on a motion for interim relief in a suit for injunction. The Plaintiff, Variegate Realestate Private Limited, sought to restrain the First Defendant from inducting the Second and Third Defendants or any other person into the suit property and from creating any third party rights. The suit property is land admeasuring 1406 square meters with a bungalow at Turner Road, Bandra. The First Defendant, who was about 82 years old at the time of the suit, died during its pendency. The Second and Third Defendants are her nephews. The learned Single Judge granted an interim injunction restraining the First Defendant from creating third party interests and from inducting any third party, save and except the Second and Third Defendants, and also restrained the Defendants from interfering with the Plaintiff's possession over the rest of the suit property, except the First Floor. The Plaintiff appealed against the exception carved out in favour of the Second and Third Defendants. The Court admitted the appeal and, with consent, took it up for final disposal. The Court held that the learned Single Judge erred in carving out the exception, as the Plaintiff had made out a strong prima facie case and the balance of convenience was in favour of granting an absolute injunction. The appeal was allowed, and the exception was set aside, making the injunction absolute against all defendants.
Headnote
A) Civil Procedure - Interim Injunction - Exception in Favour of Defendants - The Court held that the learned Single Judge erred in carving out an exception in the interim injunction in favour of the Second and Third Defendants, as the Plaintiff had made out a strong prima facie case and the balance of convenience was in favour of granting an absolute injunction. The exception was set aside, and the injunction was made absolute against all defendants. (Paras 1-3)
Issue of Consideration
Whether the learned Single Judge was justified in carving out an exception in the interim injunction in favour of the Second and Third Defendants, allowing them to remain in possession of the suit property.
Final Decision
The appeal is allowed. The exception carved out in the interim injunction in favour of the Second and Third Defendants is set aside. The injunction is made absolute against all defendants.
Law Points
- Interim injunction
- prima facie case
- balance of convenience
- irreparable injury
- possession
- specific performance
- transfer of property
Case Details
2010 LawText (BOM) (10) 68
APPEAL NO.917 OF 2010 IN NOTICE OF MOTION NO.2233 OF 2008 IN SUIT NO.1870 OF 2008
Shri Mohit S. Shah, C.J., Dr. D.Y. Chandrachud, J.
Mr. Aspi Chinoy, Senior Advocate with Mr. S.V. Doijode and Mr. K.G. Mhatre i/b. M/s. Doijode Associates for the Appellant; Mr. Shailesh Shah with Mr. Y.R. Shah for Respondent Nos.1 and 2; Mr. M.R. Irani, Respondent No.3 in person.
Variegate Realestate Private Limited
Tehmul R. Irani, Mehervan R. Irani
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Nature of Litigation
Appeal against an interim injunction order in a suit for injunction restraining the First Defendant from inducting the Second and Third Defendants into the suit property.
Remedy Sought
The Appellant (original Plaintiff) sought to set aside the exception carved out in the interim injunction in favour of the Second and Third Defendants.
Filing Reason
The learned Single Judge granted an interim injunction but carved out an exception allowing the Second and Third Defendants to remain in possession, which the Plaintiff appealed against.
Previous Decisions
The learned Single Judge granted an interim injunction restraining the First Defendant from creating third party interests and from inducting any third party, save and except the Second and Third Defendants, and restrained the Defendants from interfering with the Plaintiff's possession over the rest of the suit property, except the First Floor.
Issues
Whether the learned Single Judge was justified in carving out an exception in the interim injunction in favour of the Second and Third Defendants.
Submissions/Arguments
The Appellant argued that the learned Single Judge erred in carving out an exception in favour of the Second and Third Defendants, as the Plaintiff had made out a strong prima facie case and the balance of convenience was in favour of granting an absolute injunction.
Ratio Decidendi
The Court held that the learned Single Judge erred in carving out an exception in the interim injunction in favour of the Second and Third Defendants, as the Plaintiff had made out a strong prima facie case and the balance of convenience was in favour of granting an absolute injunction.
Judgment Excerpts
By the order of the Learned Single Judge: (i) The First Defendant has been restrained by an interim injunction from creating any third party interests in the suit property and from inducting any third party, save and except the Second and Third Defendants into the suit premises; (ii) The First Defendant has been restrained from creating any further interests in favour of the Second and Third Defendants; and (iii) The Defendants have been restrained from interfering with the possession of the Plaintiff over the rest of the suit property, save and except for the First Floor of the building.
Procedural History
The suit was instituted on 10 June 2008. The learned Single Judge passed an interim injunction order on a motion. The Plaintiff appealed against the exception in the order. The appeal was admitted on 19 October 2010 and taken up for final disposal with consent.
