Case Note & Summary
The petitioners, Sandeep Ramesh More, Pravin Ramesh More, and Sundarbai Ramesh More, filed a Special Civil Suit No. 43 of 2001 before the Civil Judge, Senior Division, Malegaon, seeking partition and separate possession of their share in the joint family property inherited from Ramesh More, who was the husband of petitioner no. 3 and father of petitioners no. 1 and 2. The respondents are the brothers and sisters of the deceased Ramesh More. The suit property is joint family property in possession of the respondents. After filing the suit, the petitioners submitted an application Exhibit-5 under Order XXXIX Rule 2 of the Code of Civil Procedure, 1908, requesting the court to restrain the respondents from transferring the suit property during the pendency of the suit. The trial court rejected the application. The petitioners then filed the present writ petition under Article 227 of the Constitution challenging the rejection. The High Court heard the matter and held that the refusal of temporary injunction does not amount to failure of justice, as the suit can proceed for final adjudication and the petitioners can seek appropriate relief at the final stage. The court also noted that the trial court's discretion was not perverse or arbitrary, and the petitioners have an alternative remedy by way of appeal. Accordingly, the writ petition was dismissed. Rule discharged with no order as to costs.
Headnote
A) Civil Procedure - Temporary Injunction - Order XXXIX Rule 2 CPC - Partition Suit - Refusal of Injunction - The petitioners filed a suit for partition and separate possession of joint family property and sought temporary injunction restraining the respondents from transferring the suit property. The trial court rejected the application. The High Court held that the refusal of injunction does not cause failure of justice as the suit can proceed for final adjudication and the petitioners can seek appropriate relief at the final stage. (Paras 1-5)
B) Constitutional Law - Writ Jurisdiction - Article 227 - Interference with Interlocutory Orders - The High Court declined to interfere with the trial court's order rejecting temporary injunction, observing that the trial court's discretion was not perverse or arbitrary, and the petitioners have an alternative remedy by way of appeal. (Paras 4-5)
Issue of Consideration
Whether the trial court was justified in rejecting the application for temporary injunction under Order XXXIX Rule 2 CPC in a partition suit, and whether the High Court should interfere under Article 227 of the Constitution.
Final Decision
The High Court dismissed the writ petition, holding that the refusal of temporary injunction does not cause failure of justice as the suit can proceed for final adjudication. Rule discharged with no order as to costs.
Law Points
- Temporary injunction
- Order XXXIX Rule 2 CPC
- Partition suit
- Prima facie case
- Balance of convenience
- Irreparable loss
Case Details
2006 LawText (BOM) (03) 82
Writ Petition No. 5514 of 2004
Shri. A. H. Palekar for the Petitioners, Shri. A. R. Shaikh for the respondent No.2
Sandeep Ramesh More, Pravin Ramesh More, Sundarbai Ramesh More
Narayan Deoba More, Narhar Deoba More, Nirmal Damodhar Mahajan, Gangabai Ramesh Khairnar
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Nature of Litigation
Civil writ petition under Article 227 challenging rejection of temporary injunction in a partition suit.
Remedy Sought
Petitioners sought to quash the trial court's order rejecting their application for temporary injunction under Order XXXIX Rule 2 CPC.
Filing Reason
The trial court rejected the petitioners' application for temporary injunction restraining the respondents from transferring the suit property during pendency of the partition suit.
Previous Decisions
The trial court rejected the application Exhibit-5 for temporary injunction.
Issues
Whether the trial court was justified in rejecting the application for temporary injunction under Order XXXIX Rule 2 CPC in a partition suit.
Whether the High Court should interfere under Article 227 with the trial court's order rejecting temporary injunction.
Submissions/Arguments
Petitioners argued that the trial court erred in rejecting the temporary injunction application.
Respondents supported the trial court's order.
Ratio Decidendi
Refusal of temporary injunction in a partition suit does not amount to failure of justice because the suit can proceed for final adjudication and the petitioners can seek appropriate relief at the final stage. The trial court's discretion was not perverse or arbitrary, and the petitioners have an alternative remedy by way of appeal.
Judgment Excerpts
Heard.
The petitioners have filed Special Civil Suit No. 43 of 2001 before the Civil Judge, Senior Division, Malegaon seeking partition and separate possession of the share of the petitioner which they inherited on the death of one Mr. Ramesh who was the husband of the petitioner no.3 and father of the petitioner nos. 1 and 2.
After filing of the suit, application Exhibit-5 was submitted under Order-XXXIX rule-2 of the Code of Civil Procedure, 1908 requesting the Court that during the pendency of the suit the respondent - original defendants shall be prohibited from transferring the suit property.
The trial court rejected the application.
In the present case, the refusal of temporary injunction does not cause failure of justice as the suit can proceed for final adjudication and the petitioners can seek appropriate relief at the final stage.
Procedural History
Petitioners filed Special Civil Suit No. 43 of 2001 for partition. They filed application Exhibit-5 for temporary injunction under Order XXXIX Rule 2 CPC, which was rejected by the trial court. Petitioners then filed Writ Petition No. 5514 of 2004 under Article 227 before the Bombay High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Order XXXIX Rule 2
- Constitution of India: Article 227
