Case Note & Summary
The appellant (plaintiff) filed Special Civil Suit No.10 of 2014 seeking specific performance of an agreement to sell a property for a consideration of Rs.19.00 Lacs, out of which Rs.10.00 Lacs had already been paid. The plaintiff apprehended that the defendant was likely to create third party interest in the suit property, defeating the plaintiff's claim. The plaintiff filed an application under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908, seeking a temporary injunction restraining the defendant from selling, transferring, mortgaging, or creating any third party interest in the suit property till the final decision of the suit. The trial court refused the injunction. Aggrieved, the plaintiff appealed. The High Court held that the apprehension of the defendant creating third party interest, coupled with the fact that a substantial amount of Rs.10.00 Lacs had been paid out of the total consideration of Rs.19.00 Lacs, constituted sufficient grounds for granting temporary injunction. The court observed that the trial court should have protected the property from changing hands pending disposal of the suit. Accordingly, the High Court set aside the impugned order and restrained the defendant from creating third party interest or alienating the suit property in any manner till the decision of the suit. The parties were directed to cooperate for expeditious disposal of the suit, and the trial court was directed to dispose of the suit as early as possible. No order as to costs.
Headnote
A) Civil Procedure - Temporary Injunction - Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 - Grant of Injunction - Where substantial part of consideration has been paid under an agreement to sell and there is apprehension of the defendant creating third party interest, the trial court ought to protect the property from alienation pending suit - Held that the refusal of injunction was erroneous and the defendant must be restrained from creating third party interest or alienating the suit property till decision of the suit (Paras 2-4).
Issue of Consideration
Whether the trial court erred in refusing to grant a temporary injunction restraining the defendant from alienating the suit property pending disposal of the suit, given the plaintiff's part payment and apprehension of third party interest.
Final Decision
The appeal is allowed. The impugned order refusing temporary injunction is set aside. The defendant is restrained from creating third party interest or alienating the suit property in any manner till the decision of the suit. The parties shall cooperate for expeditious disposal, and the trial court shall endeavour to dispose of the suit as early as possible. No order as to costs.
Law Points
- Temporary injunction
- Order XXXIX Rules 1 and 2 CPC
- Section 151 CPC
- Prima facie case
- Balance of convenience
- Irreparable injury
- Agreement to sell
- Part payment
- Apprehension of alienation
