1982 Supreme(MP) 50

H. G. Mishra, J.
Anil Kumar Hitesh v. Kashinath.
C. Revn. No. 921 of 1980 (I), Decided on 19-1-1982.

Headnote:(1) Transfer of Property Act, 1882 -- S. 52 -- transfer by receiver -- such transfer is subject to result of suit if made during its pendency.

        (2) Civil P. C., 1908 -- O. 39, Rr. 1 and 2 -- plaintiff raising serious question in partition suit -- prima facie case made out -- interest protected by rule of lis pendence transfer -- not entitled to injunction.

        This revision is directed against the order dated 15-10-1980, whereby learned Additional District Judge has affirmed the order of rejection of the application for issuance of temporary injunction submitted by the revision applicant.

        Held: The application for issuance of an interim injunction has been submitted in a suit brought by the plaintiff for partition. The plaintiff has raised in the plaint serious question of fact and law to be tried. Accordingly in view of the ratio of Ramprasad v. Smt. Khursheed Jahan (1966 MPU S. N. 14) and Shankerlal Rathore v. State of M. P. and others (1978 JLJ 51) the Court below does not appear to have acted rightly in holding that the plaintiff has failed in show existence of prima facie case in his favour. However, the fate of the revision is not improved by merely showing that a prima facie case exists in favour of the applicant. He has also not shown the coexistence of the two other factors, viz., the balance of convenience and irreparable injury. The plaintiff does not appear to have shown that he will suffer irreparable injury if the injunction is withheld. In Man Mohinee Dossee v. Inchamoyce Dasc (13 Southerlands Weekly reporter (Civil Rulings 60) law governing the situation has been laid down thus:

        "The power of issuing injunctions and appointing receiver pendente lite., which is given by the Civil Procedure Code, ought to be most cautiously exercised. It is only ill cases where property, which it is essential should be kept in its existing condition during the pendency of the suit, is in danger of being destroyed, damaged, or put beyond the power of the Court, that the Court ought to interfere so as to restrain persons who may turn out in the final event of the litigation to be the actual owners of the property from proper enjoyment and possession of it".

        The aforesaid observations were made by the Court while deciding the application for issuance of a temporary injunction for restraining alienation of property forming subject matter of partition suit. The principles laid down in the aforesaid case have the approval of a Division Bench of this Court in Jamnabai v, Narmadashankar ( 1957 JLJ 914). Accordingly it cannot be successfully contended by the revision applicant that he will suffer any irreparable injury in case the injunction is withheld. The safe in favour of Rampal has not yet been completed. At the best what can be said is that the receiver has agreed to sell the suit house in his favour for a consideration of Rs. 2 lacs, out of which merely Rs. 50,000 had been paid by Rampal to the receiver. However, on its completion the sale will be subject to the decision of the suit, it being a lis pendence transfer. For the same reason balance of convenience also cannot be regarded to be in favour of the revision applicant. If the injunction is withheld the plaintiff will not suffer any injury because his interests will remain protected by the doctrine of lis pendence as enshrined in S. 52 of the Transfer of Property Act. Thus no case appears to have been made out for grant of a temporary injunction by the revision applicant. It is not the law that on mere institution of a suit, a party becomes entitled to issuance of a temporary injunction. The proceedings for temporary injunction are serious proceedings and as such temporary injunction can be issued only on co-existence of the three factors mentioned above. 135 WR 60, 1957 JLJ 914, 1966 MPLJ SN 14 and 1978 JLJ 51 relied on. Revision dismissed.