Case Note & Summary
The petitioner, Shamrao Vishnu Kunjir, filed a writ petition challenging the rejection of his application for temporary injunction in Regular Civil Suit No.166 of 2001 pending before the Civil Judge, Junior Division, Saswad. The suit was for partition and separate possession of ancestral properties. The petitioner claimed that the properties were ancestral and that the defendants were threatening to alienate them, causing irreparable loss. The trial court and the appellate court (District Court) both rejected the injunction application, holding that the petitioner failed to make out a prima facie case. The High Court, in its judgment dated 4th May 2005, dismissed the petition. The court observed that the petitioner was not in possession of the suit property, and the defendants were in possession. The balance of convenience was in favor of the defendants, and no irreparable loss was established. The court also noted that if the suit succeeded, the petitioner could be compensated by damages. The petition was dismissed with 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 alienation of ancestral property in a partition suit. The trial court and appellate court rejected the injunction on the ground that the plaintiff failed to establish a prima facie case, as the property was not in his possession and he had not shown any threat of irreparable loss. The High Court upheld the concurrent findings, holding that the plaintiff's mere claim of co-ownership without possession or imminent threat does not entitle him to an injunction. (Paras 1-6)
B) Property Law - Ancestral Property - Partition Suit - Injunction Against Alienation - The court considered that the plaintiff was not in possession of the suit property and the defendants were in possession. The balance of convenience was in favor of the defendants, and no irreparable loss was shown. The court also noted that the plaintiff could be compensated by damages if the suit succeeded. (Paras 4-6)
Issue of Consideration
Whether the petitioner/plaintiff is entitled to a temporary injunction restraining the respondents/defendants from alienating the suit property pending disposal of the suit for partition and separate possession.
Final Decision
The High Court dismissed the writ petition, upholding the concurrent findings of the trial court and appellate court that the petitioner failed to establish a prima facie case for temporary injunction. No order as to costs.
Law Points
- Prima facie case
- balance of convenience
- irreparable loss
- temporary injunction
- Order 39 Rules 1 and 2 CPC
- ancestral property
- alienation
- partition suit
Case Details
2005 LawText (BOM) (05) 18
Writ Petition No.9523 of 2004
Mr. S.J. Rairkar for the Petitioner, Mr. S.A. Sawant for Respondent No.1
Suresh Vishnu Kunjir & Ors.
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Nature of Litigation
Civil writ petition challenging the rejection of temporary injunction in a partition suit.
Remedy Sought
The petitioner sought a writ to set aside the orders of the trial court and appellate court rejecting his application for temporary injunction restraining the defendants from alienating the suit property.
Filing Reason
The petitioner claimed that the suit properties were ancestral and that the defendants were threatening to alienate them, causing irreparable loss.
Previous Decisions
The trial court (Civil Judge, Junior Division, Saswad) rejected the injunction application. The appellate court (District Court) upheld that rejection.
Issues
Whether the petitioner/plaintiff made out a prima facie case for grant of temporary injunction.
Whether the balance of convenience was in favor of the plaintiff.
Whether the plaintiff would suffer irreparable loss if injunction was not granted.
Submissions/Arguments
Petitioner argued that the properties were ancestral and that the defendants were threatening to alienate them, causing irreparable loss.
Respondent No.1 argued that the plaintiff was not in possession and had no prima facie case.
Ratio Decidendi
A temporary injunction under Order 39 Rules 1 and 2 CPC requires the applicant to establish a prima facie case, balance of convenience in his favor, and irreparable loss. Mere claim of co-ownership without possession or imminent threat of alienation does not entitle the plaintiff to an injunction, especially when the defendants are in possession and the plaintiff can be compensated by damages.
Judgment Excerpts
The petitioner, is the original plaintiff in the pending suit being Regular Civil Suit No.166 of 2001 filed in the Court of learned Civil Judge, Junior Division, Saswad.
The reliefs sought for is that as the properties are ancestral and/or purchased out of the income of the ancestral property, the defendants be restrained from alienating the suit property.
The trial court rejected the application. The appellate court also rejected the application.
The court observed that the petitioner was not in possession of the suit property, and the defendants were in possession.
The balance of convenience was in favor of the defendants, and no irreparable loss was established.
If the suit succeeded, the petitioner could be compensated by damages.
Procedural History
The petitioner filed Regular Civil Suit No.166 of 2001 for partition and separate possession. He filed an application for temporary injunction under Order 39 Rules 1 and 2 CPC, which was rejected by the trial court. The appeal against that order was also dismissed by the appellate court. 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
