Ramesh Kumar Sharma and Anr v. Usha Nindawat

1. The appellants herein are the defendants No. 6 & 7 in the Original Suit bearing No. CS (OS) No. 109/2023 titled “Usha Nindawat Vs. Ginno Gothwal & Ors.” The present appeal has been filed by them under Order 43 read with Section 104 of the Code of Civil Procedure, 1908 [hereinafter referred as “CPC”] and Section 10 (1) of the Delhi High Court Act, 1966, assailing the order dated 19.10.2023 passed by the learned Single of this Court in IA No. 2998/2023 in the aforesaid Suit, whereby, the appellants were restrained from selling the subject suit property bearing No. A-77, Phase-III, Ashok Vihar, Delhi till further orders. The relevant portion of the said order is reproduced hereunder:-

2. The facts of the case, briefly, are that it is the claim of the plaintiff that upon the death of her father, the suit property devolved upon her and defendants No. 1 to 5, being the legal heirs. It has been further claimed that the said defendants, in collusion had fraudulently, got executed a relinquishment deed dated 27.02.2018 from her in favour of her mother i.e. defendant No. 1 and using the said deed, defendant No. 1 sold the suit property to defendants No. 6 & 7 vide sale deed dated 04.12.2020. Hence, original CS (OS) No. 109/2023 titled “Usha Nindawat Vs. Ginno Gothwal & Ors.”, seeking partition, declaration and permanent injunction has been filed.

3. The learned counsel of the appellants has argued that being the bonafide purchasers of the property from defendant No. 1, who became the owner of the same by virtue of the relinquishment deed executed by the other legal heirs, cannot be restrained from selling the suit property. It is submitted that such a preemptive restraint order would affect the right to property conferred on the appellants who are well within their rights to sell the suit property even during the pendency of the suit before the Court and this right cannot be taken away by the grant of temporary injunction.

4. Per contra, the learned counsel for the respondent (plaintiff in Original Suit) submits that there is no bar to the exercise of power to grant temporary injunction under Order 39 Rule 1 & 2 CPC. He further submits that the learned Single Judge while granting temporary injunction has recorded a specific finding that the plaintiff has established a prima facie case, balance of convenience in her favour and also that if the defendants are not restrained by an order of injunction from making any further alienation, there would be irreparable loss to the plaintiff and as such the order dated 19.10.2023 of the learned Single Judge needs no interference by this Court in the exercise of its appellate jurisdiction.

5. We have considered the submissions advanced by the learned counsel for the parties and have given our anxious consideration to the same. Further, we have also perused the entire material on record. In view of the submissions advanced, the only question which needs consideration and determination is whether the impugned order dated 19.10.2023 passed by the learned Single Judge restraining the appellants herein (defendants No. 6 & 7 in the Original Suit) from selling the suit property till further orders, suffers from any error of law or jurisdiction and calls for interference in the exercise of the appellate jurisdiction.

6. With respect to the exercise of the appellate powers in relation to the exercise of the discretion by the trial court in deciding an application for temporary injunction, it is no longer res-integra that the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, capriciously or perversely or where the court had ignored the said principles of law regulating the grant or refusal of inter-locutory injunctions.

7. In the case before us, the appellants herein (defendants No. 6 & 7 in the Original Suit) have been restrained by the learned Single Judge from selling the suit property till further orders. The primary object of grant of temporary injunction is to maintain status quo, protecting the suit property till the adjudication of the rights of the litigating parties on satisfaction of the court regarding the existence of three golden principles of prima facie case, balance of convenience and causing irreparable loss and injury in favour of the applicant.

8. The learned Single Judge granted temporary injunction in favour of the respondent after recording his findings on all the three considerations in favour of the respondent. The discretion apparently has been exercised for protecting the suit property and in order to discourage that the suit property is not subjected to subsequent sale to the third party. Else, the rights of the respondent may get frustrated and the litigation may get delayed. There is nothing on record to show that the discretion was exercised by the learned Single Judge arbitrarily, capriciously or perversely or by ignoring the settled principles of law regulating the grant of injunction, and therefore, calls for no interference in the exercise of our appellate jurisdiction. Accordingly, we do not find any legal infirmity in the order passed by the learned Single Judge restraining the appellants herein from selling the suit property till further orders.

9. Appeal is accordingly dismissed along with the pending application bearing CM No. 67147/2023.

RAVINDER DUDEJA, J. TUSHAR RAO GEDELA, J. JANUARY 05, 2024