The Single Judge dismissed the appeal preferring the trial court order granting temporary injunction against creating third party interest in suit property, holding the trial court exercised sound discretion by finding prima facie case and irreparable injury.
Temporary injunction restraining creation of third party interest was upheld; appeal dismissed.
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AO No. 206 of 2020
Hon’ble Manoj K. Tiwari, J.
Mr. P.C. Pethshali, Advocate for the appellant. Ms. Shakshi Singh, Advocate for respondent no. 1.
Mr. Rajendra Singh Negi, Advocate for respondent no. 3.
Heard learned counsel for the parties through video conferencing.
There is a delay of 167 days in filing the appeal. Time was granted to the respondents for filing objection to the delay condonation application.
Delay condonation application is not seriously opposed by learned counsel for the respondents.
Accordingly, Delay Condonation Application (CLMA No. 8278 of 2020) is allowed.
This Appeal from Order has been filed under Order 43 Rule 1(r) of C.P.C. against the order dated 23.01.2020 passed by Civil Judge (S.D.), Kashipur, District Udham Singh Nagar in Civil Suit No. 25 of 2017.
By the said order, application filed by respondent no. 1 ( Smt. Pushpa Agarwal ) under Order 39 Rule 1 & 2 of C.P.C. was allowed and defendants to the suit were restrained from creating any third party interest over the suit property.
It transpires that respondent no. 1 filed a suit seeking declaration that the sale deeds executed by defendant no. 1 ( Mr. Sanjeev Sharma ) in favour of other defendants to the suit on the strength of a forged Power of Attorney be declared null and void.
The plaint of the suit is on record as annexure – 1 to the affidavit filed in support of interim relief application.
Perusal of the plaint reveals that besides factual pleas, plaintiff had also questioned validity of the Power of Attorney by referring to Section 152-A of UPZA&LR Act.
Defendant nos. 1 & 2 in the suit, who are appellants in the present appeal, filed objection to the temporary injunction application filed by the plaintiff ( respondent no. 1 herein ). Learned trial court, after considering all relevant aspects of the matter, including import of Section 152-A of UPZA&LR Act, came to the conclusion that plaintiff has succeeded in proving “ prima facie case” and “balance of convenience” in her favour. It was further held that plaintiff has succeeded in establishing that if interim relief is not granted in her favour, then she would suffer irreparably.
After considering all the three necessary ingredients i.e. prima facie , balance of convenience and irreparable injury, learned trial court restrained the defendants from creating any third party interest over the suit property.
This court does not find any infirmity in the order passed by trial court, which may warrant interference by this Court.
It is settled position in law that temporary injunction is discretionary relief. Learned trial court has considered all the three relevant factors, which are necessary, while considering a temporary injunction application and has recorded a finding that there is a prima facie in favour of the plaintiff and other two factors are also in her favour. Learned trial court has exercised its discretion by directing the parties not to transfer the suit property during pendency of the suit and also not to create any third party interest. Such order is necessary in
order to preserve the suit property, as any transfer/sale of the suit property would create third party interest and would lead to further complications.
The cardinal principle for grant of temporary injunction was considered in Dalpat Kumar Vs Prahlad Singh reported in (1992), SCC 719 , and Hon’ble Supreme Court observed as under:-
“ 5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that noninterference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused
to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.”
In such view of the matter, in the opinion of this Court, learned trial court was justified in restraining the defendants from creating third party interest over the suit property.
Accordingly, appeal fails and is hereby dismissed. However, it is made clear that learned trial court will decide the suit on its own merits, without being influenced by any observation made by this Court in this order.
Aswal
(Manoj K. Tiwari, J.) 22.12.2020
3 issues framed by the court
Whether the appeal against the grant of temporary injunction restraining creation of third party interest over suit property succeeds.
Whether the trial court was justified in recording a prima facie case and finding irreparable injury to grant interim relief.
Whether the grant of temporary injunction is a mandatory or discretionary relief requiring compliance of statutory conditions.
Colour shows how this judgement treated each authority
Dalpat Kumar Vs Prahlad SinghExplained¶21
Dalpat Kumar Vs Prahlad Singh (1992), SCC 719 · Who else cites this
3 provisions across 2 enactments
Sanjeev Sharma
Pushpa Agarwal
Manoj K. Tiwari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
