Case Note & Summary
The appellant/defendant, Harish Bulchand Tejwani, challenged an interim injunction order passed by the Civil Judge Senior Division, Akola, in Special Civil Suit No.83 of 2013. The respondent/plaintiff, Nandlal Hakikatrai Motwani, had filed the suit for specific performance of an agreement to sell (Isar Chitthi) regarding a suit property owned by the appellant. The respondent alleged that the appellant had agreed to sell the property for a total consideration, and the respondent paid Rs.1.51 Lacs as earnest money by cheque. The appellant agreed to execute the sale deed within six months. However, the appellant failed to do so, and a legal notice dated 29.8.2013 was returned as 'Not Claimed'. The respondent apprehended that the appellant was likely to create third party interest in the property to defeat his claim. The trial court granted an interim injunction restraining the appellant from alienating or transferring the suit property. The appellant appealed under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908. The High Court, after hearing both sides, held that the trial court had correctly exercised its discretion. The court noted that the respondent had made out a prima facie case based on the agreement and payment of earnest money. The balance of convenience was in favour of the respondent because if the property was alienated, the suit for specific performance would become infructuous. The court also found that the respondent would suffer irreparable loss if the injunction was not granted. The appeal was dismissed, and the interim injunction was confirmed.
Headnote
A) Civil Procedure - Interim Injunction - Prima Facie Case - Order XXXIX Rules 1 and 2, Code of Civil Procedure, 1908 - The court upheld the interim injunction granted by the trial court, finding that the plaintiff had made out a prima facie case based on an agreement to sell and payment of earnest money, and that the balance of convenience lay in favour of the plaintiff as the defendant was likely to alienate the property to defeat the plaintiff's claim (Paras 1-5).
Issue of Consideration
Whether the trial court was justified in granting an interim injunction restraining the defendant from alienating the suit property pending disposal of the suit for specific performance.
Final Decision
The appeal is dismissed. The interim injunction order passed by the trial court is confirmed.
Law Points
- Interim injunction
- prima facie case
- balance of convenience
- irreparable loss
- Order XXXIX Rule 1 and 2 CPC
- Order XLIII Rule 1(r) CPC
Case Details
2015 LawText (BOM) (08) 142
Appeal Against Order No.8 of 2015
Shri S.A. Saoji for the Appellant, Ms Pinky Jagtap (H/f N.A. Lalwani) for the Respondent
Nandlal Hakikatrai Motwani
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Nature of Litigation
Appeal against order granting interim injunction in a suit for specific performance of an agreement to sell immovable property.
Remedy Sought
The appellant/defendant sought to set aside the interim injunction order passed by the trial court.
Filing Reason
The appellant/defendant challenged the legality and validity of the interim injunction granted by the trial court restraining him from alienating the suit property.
Previous Decisions
The trial court (Civil Judge Senior Division, Akola) passed an interim injunction order below Exh.5 on 26.9.2014 in Special Civil Suit No.83 of 2013.
Issues
Whether the trial court was justified in granting interim injunction restraining the defendant from alienating the suit property pending disposal of the suit for specific performance.
Submissions/Arguments
The appellant/defendant argued that the interim injunction ought not to have been passed.
The respondent/plaintiff argued that the appellant was likely to create third party interest in the suit property to defeat the plaintiff's claim, and therefore interim injunction was necessary.
Ratio Decidendi
In a suit for specific performance, where the plaintiff has made out a prima facie case based on an agreement to sell and payment of earnest money, and the balance of convenience is in favour of the plaintiff as the defendant is likely to alienate the property, an interim injunction restraining alienation is justified to prevent the suit from becoming infructuous.
Judgment Excerpts
By this appeal against order preferred under Order XLIII Rule 1(r) of the Code of Civil Procedure, the legality and validity of grant of interim injunction passed below order Exh.5 on 26.9.2014, in Special Civil suit No.83 of 2013, by learned Civil Judge Senior Division, Akola is questioned before this Court.
According to learned counsel for the appellant/defendant, interim injunction order restraining the appellant/defendant, his agents, servants, representatives or any other persons claiming through him from alienating, transferring or creating third party interest in the suit property pending disposal of Special Civil suit No.83 of 2013 ought not to have been passed.
Procedural History
The respondent/plaintiff filed Special Civil Suit No.83 of 2013 for specific performance of an agreement to sell. The trial court granted an interim injunction on 26.9.2014. The appellant/defendant filed Appeal Against Order No.8 of 2015 under Order XLIII Rule 1(r) CPC before the Bombay High Court, Nagpur Bench. The High Court dismissed the appeal on 14.8.2015.
Acts & Sections
- Code of Civil Procedure, 1908: Order XXXIX Rules 1 and 2, Order XLIII Rule 1(r)
