Case Note & Summary
The petitioner, Rekha Bhujang, filed a suit for partition and separate possession of suit properties described in Schedules A and B of the plaint. The respondents/defendants appeared and denied the petitioner's claim, asserting that the properties were not exclusively hers and that they had a right to alienate their shares. The petitioner filed an application for temporary injunction under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908, seeking to restrain the respondents from alienating the suit properties during the pendency of the suit. The trial court rejected the application, holding that the petitioner failed to establish a prima facie case, as the properties were not exclusively hers and co-owners have a right to alienate their share. The appellate court affirmed this decision. The petitioner then filed a writ petition under Article 227 of the Constitution of India challenging the rejection of the temporary injunction. The High Court examined the impugned orders and found that the courts below had exercised their discretion judiciously. The High Court noted that the petitioner had not demonstrated any perversity or arbitrariness in the orders. The court held that the power under Article 227 is supervisory and not appellate, and it will not interfere with a discretionary order unless it is shown to be perverse, arbitrary, or based on no evidence. The concurrent findings of the trial court and appellate court that the petitioner had no prima facie case were upheld. Consequently, the writ petition was dismissed, and the rule was discharged. No order as to costs.
Headnote
A) Civil Procedure - Temporary Injunction - Prima Facie Case - Order 39 Rules 1 and 2, Code of Civil Procedure, 1908 - The petitioner/plaintiff sought temporary injunction to restrain co-owner defendants from alienating suit properties during partition suit. The trial court rejected the application holding that the petitioner failed to establish a prima facie case as the properties were not exclusively hers and co-owners have a right to alienate their share. The appellate court affirmed. The High Court held that the discretion exercised by the courts below was not perverse or arbitrary, and no interference was warranted under Article 227 of the Constitution. (Paras 1-10)
B) Civil Procedure - Interference with Discretionary Orders - Article 227 of the Constitution of India - The High Court reiterated that the power under Article 227 is supervisory and not appellate. It will not interfere with a discretionary order unless it is shown to be perverse, arbitrary, or based on no evidence. The concurrent findings of the trial court and appellate court that the petitioner had no prima facie case were upheld. (Paras 9-10)
Issue of Consideration
Whether the trial court and appellate court erred in rejecting the petitioner's application for temporary injunction restraining the respondents from alienating the suit properties during the pendency of the partition suit.
Final Decision
The High Court dismissed the writ petition, discharged the rule, and made no order as to costs. The court upheld the orders of the trial court and appellate court rejecting the temporary injunction application.
Law Points
- Temporary injunction
- prima facie case
- balance of convenience
- irreparable loss
- partition suit
- co-owner's right to alienate
- Order 39 Rules 1 and 2 CPC
- Section 151 CPC
- discretion of trial court
- interference in writ jurisdiction
Case Details
2012 LawText (BOM) (01) 19
Writ Petition No.4603 of 2011
Mr.R.F.Totala for petitioner, Mr.V.D.Sapkal for respondent nos.1,3 to 10
Smt.Subhadrabai W/o Keshavrao Bunage and others
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Nature of Litigation
Civil writ petition under Article 227 of the Constitution of India challenging the rejection of an application for temporary injunction in a partition suit.
Remedy Sought
The petitioner sought a writ of certiorari to quash the orders of the trial court and appellate court rejecting her application for temporary injunction, and sought an injunction restraining the respondents from alienating the suit properties during the pendency of the suit.
Filing Reason
The petitioner filed the writ petition because the trial court and appellate court rejected her application for temporary injunction, and she believed the orders were perverse and arbitrary.
Previous Decisions
The trial court rejected the temporary injunction application; the appellate court affirmed that decision.
Issues
Whether the trial court and appellate court erred in rejecting the petitioner's application for temporary injunction under Order 39 Rules 1 and 2 CPC?
Whether the High Court should interfere with the discretionary orders of the courts below under Article 227 of the Constitution?
Submissions/Arguments
The petitioner argued that the courts below failed to appreciate that she had a prima facie case and that the balance of convenience was in her favor, as the respondents were attempting to alienate the suit properties, which would cause irreparable loss.
The respondents contended that the petitioner had no exclusive right over the properties and that co-owners have a right to alienate their share, and the courts below had correctly exercised their discretion.
Ratio Decidendi
The High Court held that the power under Article 227 of the Constitution is supervisory and not appellate. It will not interfere with a discretionary order of a subordinate court unless the order is shown to be perverse, arbitrary, or based on no evidence. In this case, the trial court and appellate court had exercised their discretion judiciously in finding that the petitioner failed to establish a prima facie case for temporary injunction, as the properties were not exclusively hers and co-owners have a right to alienate their share.
Judgment Excerpts
The present petitioner/original plaintiff has filed a suit for partition and separate possession in respect of the suit properties described in Schedule A and B of the plaint.
The trial court rejected the application holding that the petitioner failed to establish a prima facie case as the properties were not exclusively hers and co-owners have a right to alienate their share.
The High Court held that the discretion exercised by the courts below was not perverse or arbitrary, and no interference was warranted under Article 227 of the Constitution.
Procedural History
The petitioner filed a suit for partition and separate possession. The respondents appeared and denied the claim. The petitioner filed an application for temporary injunction under Order 39 Rules 1 and 2 CPC, which was rejected by the trial court. The petitioner appealed, and the appellate court affirmed the rejection. The petitioner then filed the present writ petition under Article 227 of the Constitution.
Acts & Sections
- Code of Civil Procedure, 1908: Order 39 Rules 1 and 2, Section 151
- Constitution of India: Article 227
