Case Note & Summary
The appellant, Shankar Govindlal Patwari, was the owner of an open plot bearing CTS No.3238 admeasuring 59.04 square meters within Dhule Municipal Corporation. Respondent No.1, Sanjay Rameshwar Sharma, filed Special Civil Suit No.133 of 2012 seeking specific performance of an alleged agreement to sell dated 16-9-2011, claiming that the appellant had agreed to sell the suit property to him. The respondent also claimed that he was already in possession of the plot on lease basis for keeping his motor cycles. The trial court granted a temporary injunction restraining the appellant from making any construction over the suit property until the disposal of the suit. The appellant challenged this order by way of an appeal under Order 43 of the Code of Civil Procedure, 1908. The High Court examined the agreement and found that it did not contain any stipulation for delivery of possession. The court noted that the respondent's claim of possession was not supported by any independent evidence and that the agreement itself did not provide for possession. The court held that in a suit for specific performance, the plaintiff must establish a strong prima facie case and that the balance of convenience must be in his favour. Since the respondent was not in possession and the agreement did not entitle him to possession, the trial court's order granting injunction was arbitrary and based on wrong principles. The High Court allowed the appeal, set aside the injunction order, and directed the trial court to decide the suit expeditiously.
Headnote
A) Civil Procedure - Temporary Injunction - Prima Facie Case - In a suit for specific performance of contract, the plaintiff must show a strong prima facie case and that the balance of convenience is in his favour. Mere existence of an agreement to sell does not entitle the plaintiff to an injunction restraining the owner from dealing with the property, especially when possession has not been delivered. (Paras 5-7) B) Specific Performance - Possession - Agreement to Sell - Where the agreement to sell does not stipulate delivery of possession and the plaintiff is not in possession, the plaintiff cannot claim temporary injunction to prevent construction by the owner. The court must consider the nature of the agreement and the conduct of parties. (Paras 5-7) C) Civil Procedure - Appeal against Injunction - Order 43 Rule 1 CPC - An appeal lies against an order granting or refusing temporary injunction. The appellate court can re-appreciate the evidence and interfere if the trial court has exercised its discretion arbitrarily or on wrong principles. (Para 2)
Issue of Consideration
Whether the trial court was justified in granting temporary injunction restraining the owner from constructing on the suit property in a suit for specific performance of contract, when the plaintiff was not in possession and the agreement did not stipulate delivery of possession.
Final Decision
The appeal is allowed. The order of temporary injunction passed by the trial court is set aside. The trial court is directed to decide the suit expeditiously.
Law Points
- Specific performance
- temporary injunction
- prima facie case
- balance of convenience
- possession
- agreement to sell
- Order 39 Rule 1 and 2 CPC
- Order 43 Rule 1 CPC
