Case Note & Summary
The appeal arises from a suit filed by the respondent No.1 (original plaintiff) against the appellant (original defendant No.1) and respondent Nos.2 and 3 for a declaration that a notice dated 12th May 2004 issued by respondent No.3 is null and void. The plaintiff claims to be the owner of a residential flat described as C-002-D-001 admeasuring 3120 sq.ft. on the fourth floor of C wing. The trial court, by an order on an application at Exh.5, restrained the appellant and respondent Nos.2 and 3 by a temporary injunction from implementing the suit notice and from causing obstruction to the plaintiff's possession over the suit flat till the disposal of the suit, subject to the condition that the plaintiff will not create any third party interests in respect of the suit flat. The appellant, being the original defendant No.1, challenged this order by way of an appeal from order. The High Court heard the appeal and reserved judgment. The court considered the submissions and found that the trial court's order was justified. The appeal was dismissed, and the interim order was confirmed. The court directed that the suit be expedited and disposed of within one year from the date of the order.
Headnote
A) Civil Procedure - Temporary Injunction - Order 39 Rules 1 and 2, Code of Civil Procedure, 1908 - The trial court granted an interim injunction restraining the defendant bank from evicting the plaintiff from the suit flat pending disposal of the suit, subject to the condition that the plaintiff not create third party interests. The High Court upheld the order, finding that the plaintiff had made out a prima facie case and that the balance of convenience was in his favor. (Paras 2-3)
Issue of Consideration
Whether the trial court was justified in granting temporary injunction restraining the appellant from implementing the suit notice and from causing obstruction to the plaintiff's possession over the suit flat.
Final Decision
The appeal is dismissed. The impugned order is confirmed. The suit is directed to be expedited and disposed of within one year from the date of the order.
Law Points
- Temporary injunction
- prima facie case
- balance of convenience
- irreparable loss
- Order 39 Rules 1 and 2 CPC
Case Details
2005 LawText (BOM) (03) 10
Appeal from Order No.906 of 2004
Ms Nipa K. Pandye i/b M/s.Mahesh Menon & Co. for the Appellant, Mr.Manoj J. Bhatt for the Respondent
William Manuel Almeida & Ors.
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Nature of Litigation
Civil suit for declaration that a notice dated 12th May 2004 is null and void, and for injunction restraining the defendants from implementing the notice and causing obstruction to possession.
Remedy Sought
The plaintiff (respondent No.1) sought a declaration that the notice is null and void and a temporary injunction restraining the defendants from implementing the notice and from causing obstruction to his possession over the suit flat.
Filing Reason
The plaintiff claimed to be the owner of the suit flat and alleged that the defendants issued a notice threatening to evict him.
Previous Decisions
The trial court granted a temporary injunction in favor of the plaintiff on an application at Exh.5, restraining the defendants from implementing the suit notice and from causing obstruction to the plaintiff's possession, subject to the condition that the plaintiff not create third party interests.
Issues
Whether the trial court was justified in granting temporary injunction restraining the appellant from implementing the suit notice and from causing obstruction to the plaintiff's possession over the suit flat.
Submissions/Arguments
The appellant (defendant No.1) argued that the trial court's order was erroneous and that the plaintiff had no prima facie case.
The respondent No.1 (plaintiff) supported the trial court's order, contending that he had made out a prima facie case and that the balance of convenience was in his favor.
Ratio Decidendi
The trial court's order granting temporary injunction was justified as the plaintiff had made out a prima facie case and the balance of convenience was in his favor. The court upheld the order subject to the condition that the plaintiff not create third party interests.
Judgment Excerpts
By the impugned order the Appellant and the Respondent Nos.2 and 3 have been restrained by an order of temporary injunction from implementing the suit notice and from causing obstruction to the possession of the Plaintiff over the suit flat till the disposal of the suit subject to condition that the Respondent No.1 will not create any third party interests in respect of the suit flat.
Procedural History
The respondent No.1 filed a civil suit against the appellant and respondent Nos.2 and 3 for declaration and injunction. The trial court granted a temporary injunction on an application at Exh.5. The appellant challenged this order by way of an appeal from order before the High Court. The High Court heard the appeal and dismissed it, confirming the trial court's order.
Acts & Sections
- Code of Civil Procedure, 1908: Order 39 Rules 1 and 2
