Case Note & Summary
The present appeal arises from an order dated 6/11/2004 passed by the Joint Civil Judge, Senior Division, Nagpur in Special Civil Suit No. 201/2004, granting a temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC) in favor of the respondent (plaintiff) and against the appellants (defendants). The suit property comprises land survey No. 149 (3.06 hectares) and survey No. 150 (1.94 hectares), totaling 12.35 acres, located in Nagpur. The respondent claimed that on 31/12/2003, appellant No. 1 orally agreed to sell the agricultural field for a total consideration of Rs. 10 lakhs. After negotiations, the respondent published a public notice in Hitavada (English) and Navbharat (Hindi) newspapers on 9/1/2004, inviting objections, as permitted by appellant No. 1 via letter dated 5/1/2004. The respondent alleged that he paid part of the consideration and was put in possession, but the appellants later denied the agreement and attempted to create third party interests. The appellants contended that there was never any concluded agreement. The trial court, after hearing both sides, granted the injunction restraining the appellants from creating any third party interest in the suit property during the pendency of the suit. Aggrieved, the appellants filed the present appeal. The High Court heard the matter finally at the admission stage on 26/4/2005 and reserved judgment on 12/9/2005. The court noted that the trial court had recorded findings on prima facie case, balance of convenience, and irreparable loss in favor of the respondent. The High Court observed that the agreement for sale need not be in writing if there is part performance, as per Section 53A of the Transfer of Property Act, 1882. The court found that the respondent had made out a prima facie case and that the balance of convenience was in his favor. The appellants did not challenge the findings on balance of convenience and irreparable loss. Consequently, the High Court dismissed the appeal, upholding the temporary injunction granted by the trial court.
Headnote
A) Civil Procedure - Temporary Injunction - Order 39 Rule 1 and 2 CPC - Prima Facie Case - The respondent claimed an oral agreement for sale of agricultural land for Rs. 10 lakhs, followed by a public notice and alleged part payment and possession. The trial court granted injunction restraining appellants from creating third party interests. Held that the respondent made out a prima facie case for injunction as the agreement need not be in writing if followed by part performance under Section 53A of Transfer of Property Act, 1882 (Paras 1-5). B) Transfer of Property Act - Part Performance - Section 53A - Oral Agreement - The appellants contended there was no concluded agreement. However, the respondent's case of oral agreement, public notice, and alleged part payment and possession was sufficient to raise a triable issue. Held that Section 53A does not require a written agreement if there is part performance (Paras 3-5). C) Civil Procedure - Balance of Convenience - Irreparable Loss - The trial court found that balance of convenience was in favor of the respondent and that refusal of injunction would cause irreparable loss. The High Court upheld this finding, noting that the appellants had not challenged the finding on balance of convenience and irreparable loss (Paras 4-5).
Issue of Consideration
Whether the trial court was justified in granting temporary injunction restraining the appellants from creating third party interest in the suit property based on an oral agreement for sale and part performance.
Final Decision
The High Court dismissed the appeal and upheld the order dated 6/11/2004 passed by the Joint Civil Judge, Senior Division, Nagpur granting temporary injunction in favor of the respondent.
Law Points
- Temporary injunction
- Order 39 Rule 1 and 2 CPC
- Prima facie case
- Balance of convenience
- Irreparable loss
- Oral agreement for sale
- Part performance
- Section 53A Transfer of Property Act
- 1882
- Public notice
- Agreement to sell need not be in writing if followed by possession and part payment
