Case Note & Summary
The petitioner, Subhash Bhiku Navarat, was the defendant in a suit filed by the respondent, Balkrishna Kashiram Shigvan, seeking perpetual injunction and mandatory injunction regarding suit property. The plaintiff claimed that the defendant was put in possession of 5 gunthas of land in Survey No.26 Hissa No.2/1B (total 81 R) by Sammati Patra for a poultry shed, but was attempting to encroach on the remaining 76 gunthas. The trial court refused interim injunction, holding that no prima facie case was made out and balance of convenience favored the defendant. The plaintiff appealed to the District Court, which allowed an application (Exhibit 6) for temporary injunction pending appeal, considering a panchanama dated 5/1/2011 and the fact that the defendant had filed a suit for specific performance of an alleged agreement for sale of 30 gunthas. The High Court, in a writ petition under Article 227, upheld the appellate court's order, finding that it was based on material evidence and not perverse. The court noted that the appellate court had considered relevant factors and that the High Court's interference was not warranted. The petition was dismissed.
Headnote
A) Civil Procedure - Temporary Injunction - Appellate Court's Power - Order XXXIX Rule 1 and 2 CPC - The First Appellate Court granted temporary injunction restraining the defendant from encroaching on the suit property pending appeal, based on material evidence including a panchanama and the filing of a suit for specific performance by the defendant. The High Court held that the appellate court's order was based on material on record and did not warrant interference under Article 227. (Paras 6-8)
B) Civil Procedure - Interference under Article 227 - Scope - The High Court's jurisdiction under Article 227 is limited to correcting errors of jurisdiction or perversity. The impugned order was not perverse or without jurisdiction, hence no interference. (Para 8)
Issue of Consideration
Whether the First Appellate Court was justified in granting temporary injunction pending appeal, and whether the High Court should interfere with such order under Article 227 of the Constitution of India.
Final Decision
The High Court dismissed the writ petition, upholding the order of the First Appellate Court granting temporary injunction pending appeal.
Law Points
- Temporary injunction
- prima facie case
- balance of convenience
- irreparable loss
- appellate court's discretion
- interference by High Court under Article 227
Case Details
2011 LawText (BOM) (11) 34
WRIT PETITION NO.8931 OF 2011
Mr. K K Jadhav for the Petitioner, Mr. Prafulla B Shah for the Respondent
Shri Subhash Bhiku Navarat
Balkrishna Kashiram Shigvan
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Nature of Litigation
Civil writ petition challenging an order granting temporary injunction pending appeal in a property dispute.
Remedy Sought
The petitioner (defendant) sought to quash the order dated 27/9/2011 passed by the First Appellate Court allowing the application for temporary injunction.
Filing Reason
The petitioner was aggrieved by the appellate court's order granting temporary injunction restraining him from encroaching on the suit property.
Previous Decisions
The trial court (Civil Judge, Junior Division, Dapoli) had refused interim injunction on 26/8/2011. The First Appellate Court allowed the application for temporary injunction pending appeal on 27/9/2011.
Issues
Whether the First Appellate Court was justified in granting temporary injunction pending appeal?
Whether the High Court should interfere with the appellate court's order under Article 227 of the Constitution of India?
Submissions/Arguments
The petitioner argued that the appellate court's order was based on irrelevant material and was perverse.
The respondent supported the appellate court's order, contending it was based on material evidence including a panchanama and the filing of a suit for specific performance.
Ratio Decidendi
The First Appellate Court's order granting temporary injunction was based on material evidence, including a panchanama and the filing of a suit for specific performance by the defendant, and was not perverse. The High Court, in exercise of its jurisdiction under Article 227, does not interfere with such orders unless there is an error of jurisdiction or perversity.
Judgment Excerpts
The First Appellate Court also took into consideration the Panchanama dated 5/1/2011 and recorded a finding that the said circumstance is too explicit to show that the Defendant is not in possession of 30 gunthas of land from the suit property...
The impugned order does not disclose the reasons for arriving at such a finding.
Procedural History
The respondent (plaintiff) filed Regular Civil Suit No.4/11 for perpetual and mandatory injunction. The trial court refused interim injunction on 26/8/2011. The plaintiff appealed (Regular Civil Appeal No.29/11) and filed an application (Exhibit 6) for temporary injunction pending appeal, which was allowed on 27/9/2011. The defendant filed the present writ petition challenging that order.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order XXXIX Rule 1, Order XXXIX Rule 2
- Constitution of India: Article 227
