Merely because Section 52 of the Transfer of
Property Act is existing and operative, it does not mean that the
plaintiff is not entitled to pray for and get interim injunction
when there is clear prima facie case in favour of the
respondent/plaintiff to protect the suit property pending disposal
of the suit. The discretionary relief of interim injunction is
granted on the basis of prima facie case, balance of convenience,
and consideration of irreparable loss with a view to protect the
suit property as it is and not to allow creation of irreversible
situation whereby legal and valid claim of the plaintiff is likely to
be defeated by transfer/alienation of the suit property by the
defendant in the case. Dishonesty of litigant intending to defeat
the probable decree, can be prevented by appropriate interim
order, when necessary in the facts and circumstances of the case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
APPEAL AGAINST ORDER NO.8 OF 2015
Harish Bulchand Tejwani,
V
Nandlal Hakikatrai Motwani,
CORAM : A. P. BHANGALE, J.
DATE : AUGUST 14, 2015
Citation: 2016 (1) ALLMR 127
1. 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.
2. 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
3. It appears that the suit property as alleged by the
respondent/plaintiff was owned and possessed by the
appellant/defendant who shifted to Ulhasnagar, District Thane.
The appellant/defendant was searching prospective purchaser for
the suit property whereas respondent/plaintiff needed to
purchase the same. Thus, there was suit transaction in the
nature of agreement to sell (Isar Chitthi). The sum of Rs.1.51
Lacs was paid as earnest money by way of Cheque as the
appellant/defendant agreed to execute the sale deed of the suit
property within six months. It also appears that there was prior
legal notice from the respondent/plaintiff on 29.8.2013 whereby
the appellant/defendant was called upon to execute the sale deed
after receiving the notice and after accepting the balance
consideration in the sum of Rs.4.49 Lacs but the said notice was
returned as “Not Claimed”.
Under these circumstances, according to learned
counsel for the respondent/plaintiff, the appellant/defendant was
likely to create third party interest while transferring the suit
property at higher rate in order to defeat the claim of the
respondent/plaintiff. Therefore, interim injunction was sought
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 the civil suit.
4. It appears that learned Trial Judge considered the
ground for grant of interim injunction and passed the reasoned
order whereby the appellant/defendant, his agents, servants,
representatives, or any other persons claiming through him were
restrained from alienating, transferring or creating third party
interest in the suit property pending disposal of the suit.
5. Learned counsel for the appellant/defendant made
reference to the oral judgment of learned Single Judge of this
Court in the case of Mukhtar Khan Akram Khan ..vs.. Abdul
Talib Abdul Wahed in Appeal Against Order No.109 of 2014
decided on 25.3.2015 contending that since Section 52 of the
Transfer of Property Act is in operation, such temporary
injunction could not have been granted. As according to him,
this Court while passing the oral judgment in Appeal Against
Order No.109 of 2014 on 25.3.2015 considered the effect of
Section 52 of the Act as sufficient to protect the party to the suit
from alienation pending disposal of the suit.
6. I have seen the copy of the oral judgment pointed out to
me. In the case cited (supra) there was a case of the appellant
therein that an agreement to purchase the house property was
entered into for consideration of Rs.14.00 Lacs while earnest
money in the sum of Rs.4.00 Lacs was paid to the respondent. As
the respondent did not execute the sale deed as agreed, the
appellant filed the suit for specific performance of agreement in
which interim injunction was sought. The Trial Court holding
that the appellant failed to make out a prima facie case had
rejected the application for grant of interim injunction.
7. The facts in the present case are different than the
facts which appear in the case cited (supra). The interim
injunction was granted by the Trial Court in this case to ensure
that suit property must not change its hands pending disposal of
the special civil suit and the Trial Court was satisfied upon
consideration of prima facie case to restrain 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 the suit. Merely because Section 52 of the Transfer of
Property Act is existing and operative, it does not mean that the
plaintiff is not entitled to pray for and get interim injunction
when there is clear prima facie case in favour of the
respondent/plaintiff to protect the suit property pending disposal
of the suit. The discretionary relief of interim injunction is
granted on the basis of prima facie case, balance of convenience,
and consideration of irreparable loss with a view to protect the
suit property as it is and not to allow creation of irreversible
situation whereby legal and valid claim of the plaintiff is likely to
be defeated by transfer/alienation of the suit property by the
defendant in the case. Dishonesty of litigant intending to defeat
the probable decree, can be prevented by appropriate interim
order, when necessary in the facts and circumstances of the case.
8. In view of above discussion, I find that no interference
is warranted in the impugned order in this appeal against order
since well reasoned order has been passed below order Exh.5 on
26.9.2014, in Special Civil suit No.83 of 2013, by learned Civil
Judge Senior Division, Akola upon prima facie consideration of
the matter. Hence, the appeal needs to be dismissed.
9. In the result, the appeal against order is dismissed. The
parties shall appear and cooperate with the trial Court for
expeditious final disposal of the pending suit. The trial court
shall endeavour to dispose of the suit finally as expeditiously as
possible on its own merits according to law.
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Property Act is existing and operative, it does not mean that the
plaintiff is not entitled to pray for and get interim injunction
when there is clear prima facie case in favour of the
respondent/plaintiff to protect the suit property pending disposal
of the suit. The discretionary relief of interim injunction is
granted on the basis of prima facie case, balance of convenience,
and consideration of irreparable loss with a view to protect the
suit property as it is and not to allow creation of irreversible
situation whereby legal and valid claim of the plaintiff is likely to
be defeated by transfer/alienation of the suit property by the
defendant in the case. Dishonesty of litigant intending to defeat
the probable decree, can be prevented by appropriate interim
order, when necessary in the facts and circumstances of the case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
APPEAL AGAINST ORDER NO.8 OF 2015
Harish Bulchand Tejwani,
V
Nandlal Hakikatrai Motwani,
CORAM : A. P. BHANGALE, J.
DATE : AUGUST 14, 2015
Citation: 2016 (1) ALLMR 127
1. 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.
2. 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
3. It appears that the suit property as alleged by the
respondent/plaintiff was owned and possessed by the
appellant/defendant who shifted to Ulhasnagar, District Thane.
The appellant/defendant was searching prospective purchaser for
the suit property whereas respondent/plaintiff needed to
purchase the same. Thus, there was suit transaction in the
nature of agreement to sell (Isar Chitthi). The sum of Rs.1.51
Lacs was paid as earnest money by way of Cheque as the
appellant/defendant agreed to execute the sale deed of the suit
property within six months. It also appears that there was prior
legal notice from the respondent/plaintiff on 29.8.2013 whereby
the appellant/defendant was called upon to execute the sale deed
after receiving the notice and after accepting the balance
consideration in the sum of Rs.4.49 Lacs but the said notice was
returned as “Not Claimed”.
Under these circumstances, according to learned
counsel for the respondent/plaintiff, the appellant/defendant was
likely to create third party interest while transferring the suit
property at higher rate in order to defeat the claim of the
respondent/plaintiff. Therefore, interim injunction was sought
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 the civil suit.
4. It appears that learned Trial Judge considered the
ground for grant of interim injunction and passed the reasoned
order whereby the appellant/defendant, his agents, servants,
representatives, or any other persons claiming through him were
restrained from alienating, transferring or creating third party
interest in the suit property pending disposal of the suit.
5. Learned counsel for the appellant/defendant made
reference to the oral judgment of learned Single Judge of this
Court in the case of Mukhtar Khan Akram Khan ..vs.. Abdul
Talib Abdul Wahed in Appeal Against Order No.109 of 2014
decided on 25.3.2015 contending that since Section 52 of the
Transfer of Property Act is in operation, such temporary
injunction could not have been granted. As according to him,
this Court while passing the oral judgment in Appeal Against
Order No.109 of 2014 on 25.3.2015 considered the effect of
Section 52 of the Act as sufficient to protect the party to the suit
from alienation pending disposal of the suit.
6. I have seen the copy of the oral judgment pointed out to
me. In the case cited (supra) there was a case of the appellant
therein that an agreement to purchase the house property was
entered into for consideration of Rs.14.00 Lacs while earnest
money in the sum of Rs.4.00 Lacs was paid to the respondent. As
the respondent did not execute the sale deed as agreed, the
appellant filed the suit for specific performance of agreement in
which interim injunction was sought. The Trial Court holding
that the appellant failed to make out a prima facie case had
rejected the application for grant of interim injunction.
7. The facts in the present case are different than the
facts which appear in the case cited (supra). The interim
injunction was granted by the Trial Court in this case to ensure
that suit property must not change its hands pending disposal of
the special civil suit and the Trial Court was satisfied upon
consideration of prima facie case to restrain 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 the suit. Merely because Section 52 of the Transfer of
Property Act is existing and operative, it does not mean that the
plaintiff is not entitled to pray for and get interim injunction
when there is clear prima facie case in favour of the
respondent/plaintiff to protect the suit property pending disposal
of the suit. The discretionary relief of interim injunction is
granted on the basis of prima facie case, balance of convenience,
and consideration of irreparable loss with a view to protect the
suit property as it is and not to allow creation of irreversible
situation whereby legal and valid claim of the plaintiff is likely to
be defeated by transfer/alienation of the suit property by the
defendant in the case. Dishonesty of litigant intending to defeat
the probable decree, can be prevented by appropriate interim
order, when necessary in the facts and circumstances of the case.
8. In view of above discussion, I find that no interference
is warranted in the impugned order in this appeal against order
since well reasoned order has been passed below order Exh.5 on
26.9.2014, in Special Civil suit No.83 of 2013, by learned Civil
Judge Senior Division, Akola upon prima facie consideration of
the matter. Hence, the appeal needs to be dismissed.
9. In the result, the appeal against order is dismissed. The
parties shall appear and cooperate with the trial Court for
expeditious final disposal of the pending suit. The trial court
shall endeavour to dispose of the suit finally as expeditiously as
possible on its own merits according to law.
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