AI Structured Summary
Not yet generated for this judgment
Judgment
Admit. By consent of the learned Counsel appearing for the parties, heard finally.
This Appeal From Order challenges the order dated 08.10.2025 passed by the Civil Judge Senior Division Mapusa, in Special Civil Suit No.128/2025/B, on an application for temporary injunction (Exhibit D-3) filed by the Respondent/Original Plaintiff, restraining the Appellant/Original Defendant from alienating or creating third party rights over the House bearing No.253/1 at Pirazona Moira, Bardez Goa (suit house).
It is the case of the Plaintiff that pursuant to his marriage in 1989 with the Defendant, the Plaintiff, in order to ensure a comfortable life for the Defendant, contributed ₹5,58,25,767/- (Rupees Five Crores Fifty Eight Lakhs Twenty Five Thousand Seven Hundred and Sixty Seven only) towards construction of the suit bungalow and paid the consideration for the purchase of four more plots, mainly as a loan amount and not a gift or marital obligation; subsequently the Defendant executed four Sale Deeds in the year 2006 and 2007 in respect of the four properties, constructed the suit house thereon and obtained Completion Certificate on 21.09.2011 and Occupancy Certificate on 15.10.2011 therefor.
Despite several demands for repayment, none of which were acceded to, the Plaintiff, vide legal notice dated 06.08.2025, demanded the said amount of ₹5,58,25,767/- (Rupees Five Crores Fifty Eight Lakhs Twenty Five Thousand Seven Hundred and Sixty Seven only) along with interest; since no payment was made, the Plaintiff filed the Special Civil Suit No.128/2025/B on 14.08.2025 for recovery of ₹5,58,25,767/- (Rupees Five Crores Fifty Eight Lakhs Twenty Five Thousand Seven Hundred and Sixty Seven only) with 18% interest from the respective dates of payments till actual realization. Along with the plaint, an application under Order 39 Rule 1 and 2 ( Exhibit D-3) for temporary injunction to secure the said house as principal security for recovery of the entire amount claimed was also filed; the Defendant, opposing the said claim, filed her preliminary reply to the temporary injunction application (Exhibit D-11) and contended that, without there being any proof, the said amount could never be said to have been given on loan and was towards purchase of the said properties in the name of the Defendant.
The Civil Court allowed the temporary injunction application vide the impugned order, restraining the Defendant from creating third party rights in the suit house. The Defendant has assailed the said order in the present Appeal.
SUBMISSIONS :
Mr. Parag Rao, learned Counsel for the Appellant has advanced the following submissions:
That the trial court has not considered the lack of prima facie case by the Plaintiff; the plaint was for recovery of money whilst the application for temporary injunction was for injunction against the properties purchased by the Defendant on a mere allegation that the Plaintiff had contributed towards the purchase of the properties. It was submitted that there being no relief sought against the immovable properties in the plaint, no temporary injunction could be granted under Order 39 Rule 1 or 2.
That the trial court has literally granted an attachment of property before a decree under Order 38 CPC, when the property was not subject matter of the suit. That the trial court has completely failed to examine whether the suit itself was likely to be dismissed as barred by limitation, whilst examining prima facie case of the Plaintiff.
Mr. Rajiv Jaipal, learned Counsel for the Respondent has advanced the following submissions:
That all transactions of loans from the Plaintiff to the Defendant were by bank transfer and not seriously disputed. That the property bearing House No.253/1 constitutes the principal security for recovery of the amounts claimed in the suit, which justified the passing of the impugned order restraining the Defendant from creating any third party rights over a house during the pendency of the suit. In answer to the contention raised by the Defendant, that the impugned order amounts to an attachment before decree in terms of Order 38 CPC, the learned Advocate relies upon the judgment of Calcutta High Court in the case of Harleen Jairath v/s. Prabha Surana and Ors.1.
CONSIDERATIONS :
The two main points that arise for consideration whilst deciding the legality of the impugned order dated 08.10.2025 are as follows:
Whether the impugned order, if construed to be one where the Trial Court acted in exercise of its jurisdiction under Order 38 CPC (Arrest and Attachment before judgment), is sustainable?
Whether the impugned order was passed in conformity with the predicates and settled law of grant of an interim order of temporary injunction, in the facts of the case?
In determining the first question, it would be apposite to analyse the provisions of Order 38, and whether the trial court could at all exercise this jurisdiction whilst passing the impugned order; Order 38 Rule 1 permits the Court, at any stage of the suit, other than in a suit covered by Section 16 CPC to issue a warrant to arrest the Defendant, and bring him before the Court, to show cause why he should not furnish security for his appearance. Under clause (a), this jurisdiction can be exercised if the Defendant seeks to abscond or leave jurisdiction of the Court or has disposed of or removed from the jurisdiction of the Court his property, in order to defeat a decree passed by the Court. The security contemplated under Sub-Rule (2) includes immovable property or such sum that the Court may accept to secure the decree, and these terms can be imposed only after a Court issues notice for that purpose to the Judgment Debtor. If the Defendant fails to comply with the order to furnish security, the Court may proceed to detain him in the prison until the decision of the suit or where the decree is passed, till the decree is satisfied. This power may be exercised, for compelling reasons to be recorded by the Trial Court, even if the suit is pending and no decree is passed.
In Raman Tech & Process Engg. Co. & Anr. V/s. Solanki Traders2, the Supreme Court has considered what may be compelling reasons to grant an attachment before decree in terms of Order 38 Rule 5 CPC and the procedure to be followed prior to such grant. The consideration of the objects of the provision and circumstances under which such order may be granted as an absolute exception are quoted below:
“4.The object of supplemental proceedings (applications for arrest or attachment before judgment, grant of temporary injunctions and appointment of receivers) is to prevent the ends of justice being defeated. The object of Order 38 Rule 5 CPC in particular, is to prevent any Defendant from defeating the realisation of the decree that may ultimately be passed in favour b of the Plaintiff, either by attempting to dispose of, or remove from the jurisdiction of the court, his movables. The scheme of Order 38 and the use of the words "to obstruct or delay the execution of any decree that may be passed against him" in Rule 5 make it clear that before exercising the power under the said Rule, the court should be satisfied that there is a reasonable chance of a decree being passed in the suit against the Defendant. This would c mean that the court should be satisfied that the Plaintiff has a prima facie case. If the averments in the plaint and the documents produced in support of it, do not satisfy the court about the existence of a prima facie case, the court will not go to the next stage of examining whether the interest of the Plaintiff should be protected by exercising power under Order 38 Rule 5 CPC. It is well settled that merely having a just or valid claim or a prima facie case, will d not entitle the Plaintiff to an order of attachment before judgment, unless he also establishes that the Defendant is attempting to remove or dispose of his assets with the intention of defeating the decree that may be passed. Equally well settled is the position that even where the Defendant is removing or disposing his assets, an attachment before judgment will not be issued, if the Plaintiff is not able to satisfy that he has a prima facie case.
5.The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a Plaintiff to utilise the provisions of Order 38 Rule 5 as a leverage for coercing the Defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous Plaintiffs by obtaining orders of attachment before judgment and forcing the Defendants for out-of-court settlements under threat of attachment.”
In the present case, the suit has been filed for recovery of money. The first transaction, allegedly made by the Plaintiff, of money being advanced to the Defendant, is on 20.10.2006, and the last transaction was made on 10.06.2025. The first transaction in the amount of ₹64,00,000/- (Rupees Sixty Four lakhs only) is of the year 2006, whilst the largest transaction of ₹1,30,00,000/- (Rupees One Crore Thirty lakhs only) is of the year 2011. Between the years 2012 to the year 2021, transactions which are shown in Table A at para 7 of the plaint are roughly in the amount of ₹62,00,000/- (Rupees Sixty Two lakhs only). The suit having been filed on 14.08.2025, and, prima facie, considering the limitation for filing the same to be three years under Article 19 of the Limitation Act, 1963, would place all recoveries prior to the year 2021 to be beyond limitation. The cause of action as stated by the Plaintiff in para 16 of the plaint is that it first arose in October 2006 when the Plaintiff first advanced the sum of ₹64,00,000/- (Rupees Sixty Four lakhs only) to the Defendant on 20.10.2006, and further arose on various dates mentioned in Table A at para 7 of the plaint, which is reproduced below:
Table- “A”
| S. No | Date | Cheque No. | Amount (in Rs). | Payer’s Bank | Payee’s Bank |
|---|---|---|---|---|---|
| 1. | 20/10/2006 | 174721 | 64,00,000/- | IOB, Janpath | IOB, Goa |
| 2. | 28/10/2011 | 983257 | 1,30,00,000/- | IOB, Janpath | Stan Chart |
| 3. | 28/10/2011 | RTGS | 5,00,000/- | IOB, Janpath | IOB, Goa |
| 4. | 30/10/2015 | 140146 | 2,00,000/- | IOB, Janpath | IOB, Goa |
| 5. | 17/02/2016 | 879005 | 5,00,000/- | IOB, Janpath | IOB, Goa |
| 6. | 18/11/2017 | 993172 | 5,00,000/- | IOB, Janpath | IOB, Goa |
| 7. | 08/06/2017 | 992874 | 1,00,000/- | IOB, Janpath | Stan Chart |
| 8. | 06/07/2017 | 992935 | 30,000/- | IOB, Janpath | |
| 9. | 30/03/2021 | 994822 | 3,00,000/- | IOB, Janpath | |
| 10. | 20/09/2021 | 994996 | 5,00,000/- | IOB, Janpath | |
| 11. | 18/11/2021 | 995146 | 1,25,000/- | IOB, Janpath | |
| 12. | 03/12/2021 | 995151 | 10,00,000/- | IOB, Janpath | |
| 13. | 06/12/2021 | 995150 | 25,00,000/- | IOB, Janpath | Stan Chart |
| 14. | 28/03/2022 | 995382 | 2,00,000/- | IOB, Janpath | |
| 15. | 09/06/2026 | 995684 | 40,000/- | IOB, Janpath | |
| 16. | 13/02/2024 | 995827 | 10,00,000/- | IOB, Janpath | |
| 17. | 06/03/2024 | 995888 | 5,00,000/- | IOB, Janpath | |
| 18. | 02/04/2024 | 996003 | 5,00,000/- | IOB, Janpath | |
| 19. | 02/05/2024 | 996051 | 5,00,000/- | IOB, Janpath | |
| 20. | 02/09/2024 | 996159 | 3,00,000/- | IOB, Janpath | IOB, Goa |
| 21. | 03/10/2024 | 996073 | 3,00,000/- | IOB, Janpath | IOB, Goa |
| 22. | 07/10/2024 | 996079 | 6,00,000/- | IOB, Janpath | IOB, Delhi |
| 23. | 02/11/2024 | 996192 | 3,00,000/- | IOB, Janpath | IOB, Delhi |
| 24. | 03/12/2024 | 996303 | 3,00,000/- | IOB, Janpath | IOB, Delhi |
| 25. | 02/01/2025 | 996296 | 3,00,000/- | IOB, Janpath | IOB, Delhi |
| 26. | 06/02/2025 | 996115 | 3,00,000/- | IOB, Janpath | IOB, Delhi |
| 27. | 05/03/2025 | 996134 | 3,00,000/- | IOB, Janpath | IOB, Delhi |
| 28. | 07/04/2025 | 996240 | 3,00,000/- | IOB, Janpath | IOB, Delhi |
| 29. | 13/05/2025 | 996468 | 3,00,000/- | IOB, Janpath | IOB, Delhi |
| 30. | 10/06/2025 | 996360 | 3,00,000/- | IOB, Janpath | IOB, Delhi |
| TOTAL | Rs.3,19,95,000/- | ||||
| Rupees Three Crores nineteen lakhs ninety-five thousand only | |||||
The loan transactions, as pleaded by the Plaintiff from the year 2006, would have to be viewed in the light of the fact that the Plaintiff and Defendant were married on 07.05.1989. The Plaintiff states that after a few years of amicable relations, the Defendant pressurized the Plaintiff into transferring substantial shares in the ancestral property in New Delhi and to maintain peace at home. Against his better judgment, during the subsistence of their marital relationship, the Plaintiff advanced all the amounts now sought to be recovered for the purpose of purchase and construction of property and the house in the name of the Defendant. The plaint is silent as to since when there is marital discord between the parties but states that a legal notice was sent to the Defendant only on 06.08.2025 calling upon the Defendant to return the amounts advanced with interest at the rate of 18% per annum claimed from the date of each payment till actual payment. This itself indicates, at least, prima facie, that each transaction was made independently and the interest is claimed from the date of each transaction.
From the aforementioned circumstances, and applying the principles laid down by the Supreme Court in Raman Tech & Process Engg. Co. & Anr. (supra), no case has been made to apply the provisions of Order 38 CPC. Even if the Trial Court meant to issue an order of attachment of the immovable property before a decree is passed, there has been no compliance with the mandate of Rules 1 to 4 of Order 38 issuing a show cause notice of detention of the Defendant as to why the house should not be retained as security before decree. The Trial Court has also not addressed itself at all to whether on the basis of pleadings in the plaint, there is a strong possibility of passing a money decree in favour of the Plaintiff. In fact, considering the Limitation Act and the specific facts referred to above, such satisfaction, at least at the prima facie stage, was difficult to record. Consequently, therefore, the impugned order cannot be construed to be one passed in exercise of the Court’s jurisdiction under Order 38 and if it were so the order will have to be set aside, being in complete breach of these provisions.
This brings me to answer the second point for determination, as to whether the predicates for the grant of an order for temporary injunction under Order 39 Rule 1 of CPC have been made out before the Trial Court before the impugned order was passed. Considering that the suit is for recovery of money, in normal course, since the subject matter of the suit was not an immovable property of House No.253/1 no temporary injunction ought to have been granted. The Plaintiff, however, claims that the temporary injunction prayed for a restraint order against the Defendant from creating any third party rights or interest over House No.253/1 in order to secure the debt, claimed by the Plaintiff as recovery in the suit.
A temporary injunction could only be claimed in terms of Order 39 Rule 1(b) CPC which postulates that the Plaintiff must prove that the Defendant threatens, or intends to remove or dispose of his property with a view to defraud his creditors. The property against which the impugned order has been passed is admittedly not the subject matter of the suit as the suit is purely one for recovery of money. The Plaintiff has to therefore make out a case that the Defendant threatens or intends to remove or dispose of the property, i.e. House No.253/1 in order to defraud the Plaintiff who claims to be a creditor.
It is not the Plaintiff's case that the property, i.e. House No.253/1 was offered as security for the advancement of various amounts spread over the years 2006 to 2025. The Plaintiff is the Defendant's husband. As stated above, there is no averment as to when their relationship became strained, but the fact remains that there is no written document between them by which the house was ever offered as a security. In fact, by the Plaintiff's own pleadings that the plots on which the house was built and the actual construction of the house was the product of the moneys advanced between the years 2006 and 2011 and the house was granted occupancy in the year 2012, the loans advanced from time to time, would have to be proved and this would be a matter of evidence. As referred above, at this stage at least, prima facie, recovery of majority of the amounts claimed may be barred by limitation considering that they pertain from the year 2006 to the year 2021 and the suit was filed in the year 2025. This fact alone must lead to a conclusion that no prima facie case has been made out.
The lack of prima facie case as aforementioned, gets further compounded by the fact that the Plaintiff is silent as to when the relationship soured and the plaint states that the cause of action for filing the suit for recovery first arose in the year 2006 on multiple causes, each from the date of advancement of money as claimed. There is however not a whisper in the plaint as to why, when the majority of the amount claimed is for transactions between 2006 and 2021, the Plaintiff waited until 06.08.2025 to send the legal notice. There is also no written acknowledgement of liability by the Defendant. In these circumstances, therefore, the Trial Court has completely failed to address itself as to how the Plaintiff, even from his conduct, could claim that prima facie case had been made out.
I am fortified in taking this view on the basis of a full bench judgment of this Court in Uto Nederland B.V and Anr v/s Tilaknagar Industries Ltd.3, relevant paragraphs of which are as below:
“10.Now we may advert to the scope and ambit of the trinity test on the basis of which the discretionary prayer for grant of injunction has to be dealt with. The expression ‘prima facie case’ is a Latin expression means ‘at first sight or based on first impression or on the face of it’. The expression ‘prima facie case’ has a well settled meaning in legal parlance. The House of Lords in American Cynamid Co. and Ethicon Ltd., (1975) 1 All ER 504 while dealing with scope and ambit of expression ‘prima facie case’ held as under:
“The use of such expressions as “a probability,” “a prima facie case,” or “a strong prima facie case” in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. The Court no doubt must be satisfied that the claim is not frivolous or vexatious, in other words, that there is a serious question to be tried. It is no part of the Court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial. One of the reasons for the introduction of the practice of requiring an undertaking as to damages upon the grant of an interlocutory injunction was that “it aided the Court in doing that which was its great object, viz. abstaining from expressing any opinion upon the merits of the case until the hearing “ : Wakefield v. Duke of Buccleugh (1865) 12 L.T 628, 629. So unless the material available to the Court at the hearing of the application for an interlocutory injunction fails to disclose that the Plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the Court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.” The aforesaid principle was reiterated in Garden Cottage Foods Ltd. v. Milk Marketing Board, (1983) 2 All ER 770.
11.The meaning of expression ‘prima facie case’ was considered by Supreme Court in Martin Burn Ltd. v. R.N. Banerjee, AIR 1958 SC 79. In the said case, Supreme Court explained the connotation ‘prima facie case’ in the following words: “A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out, the relevant consideration is whether on the evidence let it was possible to arrive at the conclusion in question and as to whether that was the only conclusion which could be arrived at on that evidence.
12.The meaning of expression ‘prima facie case’ was again explained by Supreme Court in Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719 and it was held that prima facie case is a substantial question raised bona fide which needs investigation and a decision on merits. It has further been held that expression ‘prima facie case’ is not to be confused with prima facie title which has to be established, on evidence at the trial. Thus, at the stage of consideration of the application for injunction, the Plaintiff, in order to establish he has prima facie case, has to prove that there is serious question to be tried in the suit.
13.The Supreme Court elucidated the meaning of expression ‘prima facie case’ in Gujarat Bottling Co. Ltd. (supra) to mean that the Court should be satisfied that there is a serious question to be tried at the hearing, and there is a probability that of Plaintiff obtaining the relief at the conclusion of the trial on the basis of the material placed before the Court. The expression ‘prima facie case’ means a substantial question raised bona fide which needs investigation and decision on merits and the Court, at the initial stage, cannot insist upon a fool proof case warranting an eventual decree. [See : Anand Prasad Agarwal v. Tarkeshwar Prasad, (2001) 5 SCC 568, Ramakant Ambalal Choksi (supra) and State of Kerala v. Union of India, (2024) 7 SCC 183 : 2024 Mh. L.J. Online (S.C.) 88].
14.The Court, while dealing with the prayer for injunction has also to advert itself to the second essential ingredient for grant of injunction viz. ‘balance of convenience’. In order to determine whether the balance of convenience lies, the Court must weigh two matters. The first is to protect the Plaintiff against injury by violation of his rights for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were to be resolved in his favour. The second matter is that the Defendant’s need to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated by an undertaking if the uncertainty were to be resolved in Defendant’s favour at the trial, [see : Halsbury’s Laws of England, Fourth Edition, Vol-24 Para 856, American Cynamid Co. and Ethicon Ltd. (supra) and Fellowes and Son v. Fisher, (1975) 2 All ER 829]
15.The aforesaid principle has been reiterated with approval by Supreme Court in Wander Limited (supra) and it has been held that need to protect the Plaintiff against the injury by violation of his right for which he cannot be compensated in damages recoverable in the action if the uncertainty were to be resolved in his favour has to be weighed against the corresponding need of the Defendant to be protected against injury resulting from his having been prevented from exercising his legal rights for which he would not be adequately compensated. The Court, therefore, must weigh one need against another and determine where the ‘balance of convenience’ lies.
16.The Court, while dealing with the prayer for grant of injunction is required to consider the third essential ingredient viz. irreparable injury. The Supreme Court in M/s Gujarat Bottling Co. Ltd. (supra) has held that the Court is required to satisfy itself that the party seeking injunction needs protection from the consequences of apprehended injury and the injury is such which cannot be adequately compensated by way of damages. Thus, the Court is required to satisfy itself that in case an injunction as prayed for is not granted, the party seeking the same will suffer irreparable injury.
17.A party is not entitled to an order of injunction as a matter of right. The grant of interlocutory injunction is a remedy which is discretionary in nature. However, such a discretion has to be exercised on the touchstone of trinity test viz. prima facie case, balance of convenience and irreparable injury. [See Shiv Kumar Chadha Etc. v. Municipal Corporation of Delhi, (1993) 3 SCC 161.] It is equally well settled legal proposition that the temporary injunction being equitable relief, the discretion to grant such relief will be exercised only when the Plaintiffs conduct is free from blame and he approaches the Court with clean hands Seema Arshad Zaheer v. Municipal Corporation of Greater Mumbai, (2006) 5 SCC 282 : (2006) 5 Mah LJ (SC) 218.”
Uto Nederland B.V. (supra) has made detailed reference to a judgment of the Supreme Court in Dalpat Kumar and Anr. v/s. Prahlad Singh and Ors.4, relevant paragraph is quoted below:
“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 non-interference 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 which 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.”
Considering the aforementioned facts, and the complete lack of justification for a suit to recover amounts due from the year 2006 till the year 2025, no prima facie case has been made out by the Plaintiff. All that the Trial Court notes in paragraph 8 of its judgment is that though the Defendant has denied that the amounts claimed by the Plaintiff were towards a loan, the Defendant has stated in the reply that part of the amounts were used for construction of a house as an exclusive property for the benefit of the Defendant. According to the Trial Court, since the Defendant has admitted that the amount contributed by the Plaintiff was towards purchase of the property, according to the Trial Court the Plaintiff has prima facie shown “His right, interest and share in the said property bearing House No.253/1 is being constructed”. This finding is nothing short of being perverse, as the Plaintiff has himself never claimed to have a right, interest or share in the property, and has only sought a temporary injunction against the Defendant from creating third party rights over the house to secure his claim for money in the suit property. Besides this, the Trial Court has not at all addressed itself to a serious issue of limitation or the conduct of the Plaintiff in sending a legal notice for a claim dating back as far as the year 2006, only on 06.08.2025.
The Trial Court has not even adverted to the requirement of considering irreparable loss, and on the question of balance of convenience, has pitched the case in favour of the Plaintiff again on the basis that “the Plaintiff’s right, share and interest in the house would be prejudiced”. Since the Plaintiff has never claimed such a right, this finding is ex-facie perverse and not borne from the pleadings in the plaint.
For all the aforementioned reasons, this is a case which calls for interference in this Court’s Appellate jurisdiction under Order 43 CPC; this is in line with Wander Ltd. and Anr. V/s. Antox India P. Ltd.5 where the Supreme Court has specified in what circumstances interference of the Appellate Court is justified in this jurisdiction and has held as under:
“14.The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, 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, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one e reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court’s exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph’: (SCR 721)
“... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton “...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case."
The Appeal is allowed. The impugned order dated 08.10.2025 is quashed and set aside. In the circumstances, there shall be no order as to costs. The Civil Application also stands disposed of.