The grant of a temporary injunction restraining alienation is governed by the same principles as are applicable to the grant of prayer for temporary injunction of any other nature. Extra care and caution has to be adopted by the Court to see that the plaintiff does not intend to achieve something else or is not acting with the ulterior motive in the garb of seeking a temporary injunction.

R.C. Lahoti, J.

1. The defendant has come up in appeal aggrieved by an order of temporary injunction passed by the trial Court restraining the defendant/appellant from alienating the suit property and executing any sale-deed either in favour of Gurucharansingh or any other person.

2. The plaintiff/respondent has filed a suit for specific performance of an agreement to sell of the suit property said to have been entered into by the defendant in favour of plaintiff on 6-5-1988. The consideration recited is Rs. 20,000/- out of which Rs. 10,000/- are said to have been paid simultaneously with the execution of the agreement. The defendant has denied the execution of the agreement and receipt of part consideration. On the other hand, the plea is that on 17-4-1988 he has entered into an agreement to sell the suit property in favour of his tenant Gurucharansingh and Gopalsingh, parting with possession in their favour in part performance of the agreement. Admittedly, the possession is not with the plaintiff though it is disputed as to whether the entire suit property is in possession of the tenants or the defendant. The plaintiff prayed for an ad-interim injunction restraining the attempted alienation of the suit property by the defendant. The prayer was allowed and the trial Court has granted the injunction as prayed for.

3. The learned counsel for the defendant/appellant, placing reliance on Jamnabai v. Narmadashankar, 1957 JLJ 914 DB, Anil Kumar Kitesh v. Kashinath, 1982 MPWN 247 and Sitaram v. Tularam, 1989 JLJ 432, contended that the interest of the plaintiff/respondent being sufficiently protected by the doctrine of Us pendens embodied in Section 52 of the Transfer of Property Act, 1892, the plaintiff was not going to suffer any irreparable injury and even otherwise, the plaintiff had failed in making out any prima facie case and as such, no injunction should have been granted on his application. He has also submitted, in the alternative, that the Court below has not legally disposed of the issue as to the grant of temporary injunction and hence setting aside the impugned order the matter deserves to be remanded back for reconsiderattion.

4. Shri J. P. Sharma, learned counsel for the respondent has supported the impugned order and placed reliance on Mukesh v. Deonarayan and Ors., 1987JLJ 572, Awadh Bihari v. Ashok Kumar, 1987 (2) MPWN 24 and Kailash Kaur v. State of Punjab, 1988 (2) MPWN 125, to submit that an injunction restraining an alienation pendente lite has rightly been granted by the trial Court.

5. It is true that the Civil Court does have power to issue a temporary injunction restraining an attempted alienation of the suit property by either party. Merely because Section 52 of the Transfer of Property Act protects the interest of the complaining party by providing that an alienation lis pendens shall be subject to the result of the suit, but, that does not mean that the Civil Court does not have power to issue an injunction. A contention to the contrary, if accepted, would have the effect of rendering part of the provisions contained in Clause (a) of Rule 1 of Order 39, Civil Procedure Code otiose. The power is there but, needless to say, that it is not to be exercised necessarily merely because it has been asked to be exercised.

6. In Jamnabai's case (supra), the suit filed was for partition of property and not one to obtain an injunction. Out of the substantial property involved in the suit, the plaintiff had an undivided interest only, and that too not considerable one. The balance of convenience was against the plaintiff. The Division Bench having expressed an opinion that no order of injunction could be issued which would operate only to the extent of plaintiffs undivided interest, held that the plaintiffs interest was sufficiently protected by the principle of Us pendens and issue of injunction would only complicate the matter. Order rejecting the prayer for the grant of interim injunction was upheld.

7. In Anil Kum