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Goilisaheb Haji Vs. Tarachand Bapuchand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 1687 of 1955
Judge
Reported inAIR1956Bom200
ActsCode of Civil Procedure (CPC), 1908 - Order 23, Rule 2 - Order 39, Rule 1; Transfer of Property Act - Sections 52
AppellantGoilisaheb Haji
RespondentTarachand Bapuchand
Appellant AdvocateS.C. Jawali, Adv.
Respondent AdvocateK.B. Sukhtankar, Adv.
Excerpt:
- .....the most important question as to who was in possession at the date of the suit.ordinarily the question of possession plays an important part in the decision of applications for interim injunction in pending suits and mr. javali no doubt is justified in making a grievance of the fact that this question has not been considered by the courts below. but there are some other facts which are unusual in this case and the courts below have taken the view that prima facie the plaintiff is not entitled to claim any injunction because in effect it appears to have been assumed by them at this stage that the plaintiff may not be entitled ultimately to the declaration and injunction which he claims.on this prima facie view of the matter, both the courts have rejected the plaintiff's claim for.....
Judgment:

1. This is a revisional application by the plaintiff and it has been preferred against the order passed by the learned District Judge confirming the trial Court's order on the application made by the petitioner in the suit. In his suit for declaration and injunction the petitioner applied for interim injunction. He obtained an ex parte rule on that application, but ultimately the rule was discharged and the injunction was dissolved.

The petitioner then preferred an appeal, but his appeal was dismissed. That is why he has come to tills Court and the main argument which has been urged on his behalf by Mr. Javali with considerable emphasis is that, in dealing with the interlocutory application for injunction, the Courts below have not considered the most important question as to who was in possession at the date of the suit.

Ordinarily the question of possession plays an important part in the decision of applications for interim injunction in pending suits and Mr. Javali no doubt is justified in making a grievance of the fact that this question has not been considered by the Courts below. But there are some other facts which are unusual in this case and the Courts below have taken the view that prima facie the plaintiff is not entitled to claim any injunction because in effect it appears to have been assumed by them at this stage that the plaintiff may not be entitled ultimately to the declaration and injunction which he claims.

On this prima facie view of the matter, both the Courts have rejected the plaintiff's claim for temporary injunction and this finding cannot be challenged by Mr. Javali in a revisional application.

2. I do not propose to express any opinion on the findings made by the courts below because any expression of opinion, even recorded in a prima facie manner, is likely to prejudice the trial. But I must mention that Mr. Sukhtankar for the Opponent has contended that the present suit is frivolous. He argues that the petitioner is a purchaser who is affected by 'Lis pendens' and he has invited my attention to the fact that in the earlier suit which had been filed by the petitioner for a similar purpose an application was made to the appellate Court for liberty to withdraw the suit Under Order 23, Rule 2, and he argues that, so far as can be seen, the formal defect on which reliance was presumably placed by the petitioner in support of the petition under Order 23, Rule 2, has still not been remedied in the present suit.

The plaintiff is an auction-purchaser of the properties in 1953 and the defendant is an auction-purchaser in 1952. Though the auction-sale in favour of the defendant took place in 1952, it was in execution of a decree which had been passed much earlier, and Mr. Sukhtankar's case is that the plaintiff is affected by 'lis pendens' under Section 52, Transfer of Property Act.

As I have just indicated, I propose to express no opinion on these contentions. If the Courts below took the view that prima facie the plaintiff is not entitled to the relief of interim injunction, I do not think that in the circumstances of this case I would be justified in interfering with this Order on the technical ground that the question of possession has not been considered by them. On the view that they look, the question of possession really ceased to be material. Under these circumstances, I must hold that there is no question of jurisdiction involved in the present revisional application.

3. Mr. Javali, however, expressed, his apprehension that, in case injunction is not issued in his favour and the opponent is allowed to take possession of the property the structure which has been built on this property, which, according to the petitioner, has not been the subject-matter of the auction-sale, would be in jeopardy.

The Opponent's local lawyer is present in Court and he has authorised Mr. Sukhtankar to give an undertaking that the Opponent will not pull down the structure even after he takes possession of the property. In the interests of justice I think it is necessary to direct the learned trial Judge that he should take up this suit for final disposal as early as possible on his file and dispose of it without unnecessary delay.

4. The application fails and the rule is discharged with costs. Record to be sent back immediately.

5. Rule discharged.


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