Case Note & Summary
The present appeal is preferred by the original plaintiffs against the order dated 20/10/2012 passed by the Civil Judge, Senior Division, A Court, Margao, by which the application for Temporary Injunction Exh.D-3 is rejected. The plaintiffs, Letellier Shollet Gusmao Paulo Roncon Pereira and his wife Maya Roncon Pereira, filed a suit seeking declaration of ownership and permanent injunction against the defendants, who are family members and a company. The plaintiffs claimed that the suit property was owned by one Antonio Bilimoria Roncon Pereira, who executed a will in their favor. After Antonio's death, the plaintiffs alleged that the defendants were trying to alienate the property. The trial court rejected the injunction application, holding that the plaintiffs failed to make out a prima facie case. The High Court upheld the trial court's order, noting that the plaintiffs were not in possession and their title was disputed. The court also found that the balance of convenience favored the defendants, who were in possession and had entered into agreements for sale. The appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Temporary Injunction - Order 39 Rules 1 and 2 CPC - Prima Facie Case - The plaintiffs sought injunction to restrain defendants from alienating property, claiming ownership under a will. The court held that the plaintiffs failed to establish a prima facie case as they were not in possession and their title was disputed. (Paras 10-15)
B) Civil Procedure - Temporary Injunction - Balance of Convenience - The court found that the balance of convenience was in favor of the defendants, who were in possession and had executed agreements for sale. Granting injunction would cause greater hardship to defendants. (Paras 16-20)
C) Civil Procedure - Temporary Injunction - Irreparable Loss - The plaintiffs did not demonstrate that they would suffer irreparable loss if injunction was not granted, as the property could be compensated in monetary terms. (Paras 21-23)
Issue of Consideration
Whether the plaintiffs are entitled to a temporary injunction restraining the defendants from alienating or creating third-party rights over the suit property pending disposal of the suit.
Final Decision
The appeal is dismissed. The order dated 20/10/2012 passed by the Civil Judge, Senior Division, A Court, Margao, rejecting the temporary injunction application is upheld. No order as to costs.
Law Points
- Temporary injunction
- prima facie case
- balance of convenience
- irreparable loss
- Order 39 Rules 1 and 2 CPC
- specific performance
- possession
- title
Case Details
2016 LawText (BOM) (03) 130
Appeal from Order No.17 of 2013
Mr. M. B. D'Costa, Senior Advocate with Ms. K. Betquekar for appellants; Mr. M. S. Joshi for respondent nos.4 and 5(a) and 5(b); Mr. S. D. Lotlikar, Senior Advocate with Mr. C. Padgaonkar for respondent no.6
Shri Letellier Shollet Gusmao Paulo Roncon Pereira and Smt. Maya Roncon Pereira
Smt. Iona Eremita Roncon Pereira and others
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Nature of Litigation
Appeal against rejection of temporary injunction in a civil suit for declaration of ownership and permanent injunction.
Remedy Sought
The plaintiffs sought a temporary injunction restraining the defendants from alienating or creating third-party rights over the suit property.
Filing Reason
The plaintiffs claimed ownership of the suit property under a will executed by Antonio Bilimoria Roncon Pereira and alleged that the defendants were attempting to alienate the property.
Previous Decisions
The Civil Judge, Senior Division, A Court, Margao, rejected the plaintiffs' application for temporary injunction (Exh.D-3) on 20/10/2012.
Issues
Whether the plaintiffs have a prima facie case for grant of temporary injunction?
Whether the balance of convenience lies in favor of the plaintiffs?
Whether the plaintiffs would suffer irreparable loss if injunction is not granted?
Submissions/Arguments
Appellants argued that they are owners of the suit property under a will and that defendants are trying to alienate it.
Respondents contended that the plaintiffs are not in possession and that the will is disputed; defendants are in possession and have entered into agreements for sale.
Ratio Decidendi
For grant of temporary injunction, the plaintiff must establish a prima facie case, balance of convenience in his favor, and irreparable loss. In this case, the plaintiffs failed to prove possession or clear title, and the balance of convenience favored the defendants who were in possession.
Judgment Excerpts
The present appeal is preferred by the original plaintiffs against the order dated 20/10/2012 passed by the Civil Judge, Senior Division, A Court, Margao, by which the application for Temporary Injunction Exh.D-3 is rejected.
The court held that the plaintiffs failed to establish a prima facie case as they were not in possession and their title was disputed.
The balance of convenience was in favor of the defendants, who were in possession and had executed agreements for sale.
Procedural History
The plaintiffs filed a suit for declaration of ownership and permanent injunction. They also filed an application for temporary injunction (Exh.D-3). The trial court rejected the injunction application on 20/10/2012. The plaintiffs appealed to the High Court of Bombay at Goa, which dismissed the appeal on 23/03/2016.
Acts & Sections
- Code of Civil Procedure, 1908: Order 39 Rules 1 and 2
