Case Note & Summary
The appellants, Francisco Mascarenhas and Cecilia Carolina Mascarenhas, filed an appeal against an order of the Civil Judge, Senior Division, Quepem, dismissing their application for temporary injunction. The appellants had entered into an agreement for sale dated 29/1/2000 with respondent no.1, Prakash Manguesh Adarkar, for the sale of a landed property at Sanguem for a cash consideration of Rs. 1,20,000/- plus one shop and a double bedroom flat to be allotted in the building to be constructed on the suit property. The appellants had purchased the property by sale deed dated 9/3/1978. The respondent no.1 failed to furnish the plan of the flat and shop despite unreasonable delay, leading to a dispute and the filing of a suit for specific performance along with an application for temporary injunction to restrain the respondents from alienating or encumbering the property. The trial court dismissed the injunction application, holding that the appellants had not made out a prima facie case. In appeal, the High Court noted that the respondents, though served, did not appear, indicating loss of interest. The court found that the agreement for sale was admitted by the respondents in their written statement, and the respondents had failed to perform their obligations. The court held that the appellants had made out a prima facie case, the balance of convenience was in their favor, and they would suffer irreparable loss if the injunction was not granted. The appeal was allowed, the trial court's order was set aside, and a temporary injunction was granted restraining the respondents from alienating or encumbering the suit property until the disposal of the suit.
Headnote
A) Civil Procedure - Temporary Injunction - Prima Facie Case - Order 39 Rules 1 and 2, Code of Civil Procedure, 1908 - The plaintiffs sought temporary injunction to restrain defendants from alienating or encumbering suit property pending suit for specific performance - Court held that plaintiffs had made out a prima facie case as defendant failed to perform obligations under agreement - Balance of convenience in favor of plaintiffs and irreparable loss likely if injunction not granted (Paras 2-5).
Issue of Consideration
Whether the plaintiffs made out a prima facie case for grant of temporary injunction against the defendants in a suit for specific performance of an agreement for sale.
Final Decision
Appeal allowed. Order of the Civil Judge, Senior Division, Quepem dated 24th November, 2006 set aside. Temporary injunction granted restraining the respondents from alienating or encumbering the suit property until disposal of the suit.
Law Points
- Prima facie case
- balance of convenience
- irreparable loss
- temporary injunction
- agreement for sale
- breach of contract
