Case Note & Summary
The appellant, Durga Bearing (Mumbai) Pvt. Ltd., filed an appeal against the order of the City Civil Court, Dindoshi, Mumbai, dated 10 August 2016, which refused to grant ad-interim relief restraining respondent No.1 from creating third party interest in the suit property. The appellant had filed Suit No.1773 of 2016 seeking a declaration of 50% share in the suit plot and flat No.401 along with two car parkings. The trial court held that the appellant failed to prove prima facie that it had 50% share as there was no document to that effect, and also that there was no cause for apprehension of disposal. The trial court further relied on Section 52 of the Transfer of Property Act, 1882, stating that protection against creation of third party interest is always available under that section. The appellant challenged this order, submitting that the trial court did not properly consider the documents on record, including the original lease deed dated 22.3.1960 executed by respondent No.2 in favour of Smt. Kusum Tulsidas Vora and the assignment deed dated 30.6.1972. The appellant argued that these documents showed its right in the property. The High Court, per Dr. Shalini Phansalkar-Joshi, J., held that the trial court ought to have considered the documents to assess whether the appellant had any right in the property, and that the trial court's finding that there was no document to prove 50% share was premature without proper evaluation. The court also held that Section 52 of the Transfer of Property Act does not substitute for an order of injunction; it only provides protection against transfer pendente lite but does not obviate the need for interim relief when there is apprehension of alienation. The High Court allowed the appeal, set aside the impugned order, and directed the trial court to decide the Notice of Motion afresh after considering the documents and the legal position regarding Section 52.
Headnote
A) Civil Procedure - Ad-Interim Injunction - Prima Facie Case - The trial court must consider documents on record to assess prima facie case and cannot refuse injunction solely on ground that appellant failed to prove 50% share without proper evaluation of lease deed and assignment deed - Held that the court should have considered the documents to see if appellant had any right in the property (Paras 5-6). B) Transfer of Property Act - Section 52 - Lis Pendens - Section 52 of the Transfer of Property Act, 1882 does not substitute for an order of injunction; it only provides protection against transfer pendente lite but does not prevent the need for interim relief when there is apprehension of alienation - Held that the trial court erred in relying on Section 52 to refuse injunction (Para 7).
Issue of Consideration
Whether the trial court was justified in refusing ad-interim relief restraining the respondent from creating third party interest in the suit property on the ground that the appellant failed to prove 50% share and that Section 52 of the Transfer of Property Act provides adequate protection.
Final Decision
The High Court allowed the appeal, set aside the impugned order dated 10th August, 2016, and directed the trial court to decide the Notice of Motion No.2058 of 2016 afresh after considering the documents and the legal position regarding Section 52 of the Transfer of Property Act.
Law Points
- Ad-interim injunction
- Prima facie case
- Balance of convenience
- Irreparable loss
- Section 52 Transfer of Property Act
- 1882
- Lease deed
- Assignment deed
- Share in property
