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IN THE HIGH COURT OF JUDICATURE AT PATNA
SUNIL DUTTA MISHRA, J.
Civil Misc. Jur. No.835 of 2018
(5.7.2023)
Nabo Narayan Jha ... Petitioner
vs.
Kamlesh Jha & Ors. .... Respondents
Civil Procedure Code, 1908 – Order 39 Rules 1 and 2 – Grant of interim injunction – Interim injunction becomes a very important component of a Civil litigation – Before a Court grants temporary injunction, it needs to be satisfied that a person seeking injunction has a prima facie case in his favour and that balance of convenience and irreparable injury also lies in his favour – No temporary injunction should be issued unless three essential ingredients are made out, namely (1) Prima facie case, (ii) balance of convenience (iii) irreparable injury which could not be compensated in terms of money – If a party fails to make out any of three ingredients he would not be entitled to injunction and Court will be justified in declining to issue injunction. (Paras 10 to 13)
Civil Procedure Code, 1908 – Order 39 Rules 1 and 2 – Grant of interim injunction – Word 'prima facie case' apparently indicates something which at first impression makes out a triable case – Term 'prima facie case' should not be confused with term 'prima facie title' which has to be established at trial upon permitting parties to lead evidence – It means a substantial question which has been raised and which upon first sight needs to be investigated and decided on merits – Word 'balance of convenience' denotes that court must be satisfied that comparative mischief and hardship which is likely to be caused to person seeking injunction is more than inconvenience likely to be caused to other party by granting such injunction – Word 'irreparable injury' guides court to be satisfied that refusal to grant injunction would result in such injury which cannot be compensated in term of costs or otherwise and person seeking injunction needs to be protected from consequences of apprehended injury – While dealing with these three ingredients, court must refrain from holding a mini trial – Considerations of equity and interests of justice would justify preservation of status quo in respect of corpus of dispute. (Paras 14 to 18)
Transfer of Property Act, 1882 – Section 52 – Civil Procedure Code, 1908 – Order 39 Rules 1 and 2 – Doctrine of lis pendens is founded in public policy and equity – Effect of Section 52 is not to render transfers effected during pendency of a suit by a party to suit void, but only to render such transfers subservient to rights of parties to such suit, as may be, eventually, determined in suit – Mere pendency of a suit does not prevent one of parties from dealing with property constituting subject matter of suit – Section 52 only postulates a condition that alienation will be no manner affect rights of other party under any decree which may be passed in suit unless property was alienated with permission of Court – Distinction between Section 52 of T.P. Act and Order 39 Rule 1 & 2 CPC is that an order of temporary injunction is of pre-emptive nature restraining act of alienation by party to suit where there is such danger, whereas Section 52 of T.P. Act comes into play after alienation takes place during pendency of suit – Section 52 does not come in way of applicability of Order 39 Rule 1 & 2 CPC – Notwithstanding Section 52 of T.P. Act making transfers during pendency of suit, Court, may pass order of temporary injunction if all requisites pre-condition for such grant are satisfied. (Paras 22 and 28)
Sunil Dutta Mishra, J.—Heard the learned counsel for the parties.
2. This Civil Miscellaneous application has been filed against the order dated 16.04.2018 passed by the learned Additional District Judge VII, Madhubani in Misc. Appeal No. 46 of 2014 by which he has allowed the miscellaneous appeal filed on behalf of the respondent 1st set (respondent nos. 1 and 2/ defendant nos. 5 and 6) and set aside the order dated 06.05.2014 passed by learned Trial Court in the matter of injunction in Partition Suit No. 167 of 2012.
Brief facts:-
3. The petitioner who is sole respondent, filed Partition Suit No. 167 of 2012 in the Court of learned Sub-Judge 1st, Madhubani against the defendants for a decree of partition of the land mentioned in Schedule No. I of the plaint and if prior partition is not being proved, the lands mentioned in Schedule Nos. II, III, IV, V & VI be also partitioned among the parties. Subsequently the plaintiff/petitioner filed an injunction petition under Order 39 Rule 1 and 2 and Section 151 of the CPC in the said partition suit praying inter alia for restraining the defendants from alienating the land as detailed in Schedule I of the plaint which has not been partitioned. The same was opposed by the defendant nos. 5, 6 and 7 by filing the show cause. It appears that their claim is that on the basis of mutual partition the disputed plot no. 456 which is a part of schedule I of the plaint was allotted to the exclusive share of the father of the defendant nos. 5, 6 and 7 namely Late Durga Narayan Jha and accordingly R.S. Khatiyan was prepared in his name and after his death the same is their exclusive property which is not required for partition. After hearing the parties, the learned Trial Court allowed the said injunction petition dated 20.09.2012 of the plaintiff and ordered not to sell or alienate the suit land as detailed in Schedule - I of the plaint till final adjudication of the instant suit. All the concerned parties were also directed to maintain status quo with respect to the lands as detailed in Schedule II, III, IV, V and VI of the plaint.
4. Subsequently, having aggrieved by the said order of injunction the defendant nos. 5 and 6 filed a Miscellaneous Appeal in the Court of learned District Judge, Madhubani, bearing Miscellaneous Appeal No. 46 of 2014 (07 of 2014). The plaintiff filed the rejoinder and also subsequently filed a registered sale deed dated 29.06.2012 in order to show that the defendant nos. 8 and 9 have alienated the suit land especially Plot No. 456 (Schedule I of the plaint) in favour of one stranger during the pendency of the present partition suit.
5. The Additional District Judge VII, Madhubani allowed the said appeal setting aside the order dated 16.04.2018 passed by the Trial Court. The learned Lower Appellate Court given finding that prima facie case is in favour of appellants and observed that so far as the balance of convenience and irreparable loss is concerned it cannot be said that if the appellants will sell the suit land then irreparable loss will be sustained by the respondent because it can be compensated in terms of money and it is settled principle of law that no one can give better title himself. Further, according to Section 52 of the Transfer of Property Act during the pendency of suit any sell comes in the principle of lis pendence to restrain the transferability of a property should be avoided because state obtain revenue if a registry is executed by anybody of any land. It is a case of partition suit and in this case no one can be prohibited from his fundamental use, maintain or sell of the suit land.
Submissions on behalf of the parties:—
6. Learned counsel for the petitioner has submitted that the learned Lower Appellate Court failed to protect the rights and interest of the plaintiff who has brought the partition suit for his separate share in the joint family property and the learned Appellate Court has cared much about the interest of the defendants and the loss o
The court upheld the grant of a temporary injunction, emphasizing the necessity of establishing a prima facie case, balance of convenience, and irreparable injury in property disputes.
Grant or refusal of interim relief/temporary injunction - Usually, prayer for grant of an interlocutory injunction is at a stage when the existence of legal right asserted by plaintiff and its allege....
Joint family properties must be protected in partition suits, ensuring the rights of co-sharers against potential losses during ongoing legal disputes.
Point of law: If an injunction is obtained falsely stating that High Court has refused to grant an injunction and when the same is also not considered on main and it will be considered along with mai....
The court established that in partition suits, a prima facie case and balance of convenience are essential for granting interim injunctions to prevent irreparable harm.
The court affirmed its inherent authority to issue preservation orders under Article 227 and Section 151 of CPC, regardless of injunction criteria not being satisfied, emphasizing the maintenance of ....
The appellate court must respect the trial court's discretion in granting injunctions unless shown to be arbitrary or perverse.
The appellate court must respect the trial court's discretion in granting injunctions unless shown to be arbitrary or perverse, emphasizing the need for careful scrutiny of such orders.
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