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.
Bombay High Court
Harish Bulchand Tejwani vs Nandlal Hakikatrai Motwani on 14 August, 2015
Bench: A.P. Bhangale
Citation:2015(6) MHLJ 597 Bom
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 sinceSection 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 co-operate 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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