Case Note & Summary
The appellant, Bapurao Khante, filed a suit for specific performance of an agreement of sale dated 15/05/2000 executed by the respondent, Bhagwan Khante, agreeing to sell suit property for Rs. 75,000/-. The appellant claimed that the entire consideration was paid and he was put in possession. The respondent denied the agreement and possession. The appellant filed an application under Order 39 Rules 1 and 2 CPC seeking interim injunction restraining the respondent from creating third party interest and from disturbing his possession. The trial court partly allowed the application, restraining the respondent from creating third party interest but refusing to restrain disturbance of possession. The lower appellate court upheld that order. The appellant appealed to the High Court. The High Court held that the lower appellate court had exercised discretion judiciously. The appellant failed to establish possession with sufficient evidence, and the balance of convenience did not warrant granting the wider relief. The court found no perversity or illegality in the impugned order. The appeal was dismissed, and the interim order was directed to continue till disposal of the suit.
Headnote
A) Civil Procedure - Interim Injunction - Order 39 Rules 1 and 2 CPC - Specific Performance - The appellant sought interim injunction restraining respondent from creating third party interest and from disturbing possession. The trial court granted only restraint on creation of third party interest but refused to restrain disturbance of possession. The appellate court upheld that order. The High Court found no error in the discretion exercised by the lower appellate court, as the appellant failed to establish possession and balance of convenience did not favour granting the wider relief. (Paras 1-6)
B) Specific Performance - Agreement of Sale - Possession - The appellant claimed possession under an agreement of sale dated 15/05/2000 for Rs. 75,000/-. The respondent denied possession and contended the agreement was not acted upon. The court held that the question of possession is a disputed fact to be decided at trial, and interim relief of restraining disturbance of possession cannot be granted without clear proof of possession. (Paras 2-5)
Issue of Consideration
Whether the appellant is entitled to an interim injunction restraining the respondent from creating third party interest and from disturbing possession of the suit property pending disposal of the suit for specific performance.
Final Decision
The appeal is dismissed. The impugned order dated 14/07/2016 passed by the District Judge-9, Nagpur in Regular Civil Appeal No. 246/2016 is confirmed. The interim order granted by the trial court restraining the respondent from creating third party interest in the suit property shall continue till the disposal of the suit.
Law Points
- Interim injunction
- Order 39 Rules 1 and 2 CPC
- Specific performance
- Balance of convenience
- Prima facie case
- Irreparable loss
Case Details
2017 LawText (BOM) (06) 153
Appeal Against Order No. 54/2016
Dr. Smt. Shalini Phansalkar-Joshi
Shri N.V. Fulzele for Appellant, Shri A.S. Kulkarni for Respondent
Shri Bapurao s/o Shivanji Khante
Shri Bhagwan s/o Anandraoji Khante
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Nature of Litigation
Civil appeal against order granting partial interim injunction in a suit for specific performance of an agreement of sale.
Remedy Sought
Appellant sought full interim injunction restraining respondent from creating third party interest and from disturbing his possession of suit property.
Filing Reason
Appellant claimed respondent agreed to sell suit property and accepted full consideration, but respondent denied agreement and possession.
Previous Decisions
Trial court partly allowed injunction (restrained third party interest but not disturbance of possession); lower appellate court upheld that order.
Issues
Whether the appellant is entitled to interim injunction restraining respondent from disturbing possession of suit property pending disposal of suit for specific performance.
Submissions/Arguments
Appellant argued that he was put in possession under the agreement and has a prima facie case, balance of convenience in his favour, and would suffer irreparable loss if injunction not granted.
Respondent denied execution of agreement and possession, contending that the appellant failed to make out a case for injunction.
Ratio Decidendi
In an application for interim injunction under Order 39 Rules 1 and 2 CPC, the court must consider prima facie case, balance of convenience, and irreparable loss. The discretion exercised by the lower appellate court in refusing to restrain disturbance of possession was not perverse or illegal, as the appellant failed to establish possession and the balance of convenience did not favour granting the wider relief.
Judgment Excerpts
This appeal is preferred against the order dated 14/07/2016 passed by the District Judge-9, Nagpur in Regular Civil Appeal No. 246/2016 thereby partly allowing the appellant's application for interim injunction filed under order-39, Rule 1 and 2 of Civil Procedure Code restraining the respondent from creating any third party interest in the suit property; however, rejecting the prayer of restraining the respondent from disturbing the appellant's possession in the suit property, till disposal of appeal.
The case of the appellant is to the effect that respondent herein, had by executing an agreement of sale dated 15/05/2000 agreed to sell the suit property to the appellant and accepted the total consideration of Rs. 75,000/-.
Procedural History
The appellant filed a suit for specific performance of an agreement of sale. He also filed an application under Order 39 Rules 1 and 2 CPC for interim injunction. The trial court partly allowed the application, restraining the respondent from creating third party interest but refusing to restrain disturbance of possession. The appellant appealed to the District Judge-9, Nagpur in Regular Civil Appeal No. 246/2016, which was dismissed. The appellant then filed the present appeal before the High Court.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 39, Rules 1 and 2
