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Acts
  • Order 39 Rules 1 and 2 CPC
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Citation Codes
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citation codes
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Acts
  • Order 39 Rules 1 and 2 CPC
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Smart Summary

Factual and Procedural Background

The petitioner filed this revision petition against the order dated 06.07.2018 of the Addl. Civil Judge (Sr. Divn.), Faridabad and the order dated 13.12.2018 of the District Judge, Faridabad, by which the application under Order 39 Rules 1 & 2 CPC was dismissed concurrently. The plaintiff had instituted a suit for declaration by way of cancellation of a sale deed (dated 30.08.2016) with consequential relief of permanent injunction and for possession and, in the alternative, for recovery of Rs. 69,69,000/-. An application under Order 39 Rules 1 & 2 CPC accompanied the suit. The trial court dismissed that application on the ground that the three essential ingredients for a temporary injunction (prima facie case, balance of convenience, and irreparable loss) were missing. The plaintiff alleged that the sale deed was procured by fraud, asserting that he was mentally retarded and the defendant took advantage of his condition. The sale deed was executed on 30.08.2016 and was challenged on 04.01.2018. The judgment was delivered by Raj Mohan Singh, J., on May 01, 2019.

Legal Issues Presented

  1. Whether the application under Order 39 Rules 1 & 2 CPC for grant of temporary injunction should have been allowed in respect of the disputed sale deed.
  2. Whether the plaintiff had established a prima facie case, balance of convenience, and risk of irreparable injury justifying interim relief in view of the allegation of fraud and the existence of triable issues.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court affirmed the trial court's assessment that the plaintiff's case failed at the threshold test for grant of temporary injunction because:

  • Civil disputes are decided on preponderance of probability, and allegations of fraud must be proved through evidence; the plaintiff would get the opportunity to lead evidence at trial.
  • The alleged sale deed (30.08.2016) was challenged on 04.01.2018; cancellation based on fraud requires trial evidence rather than summary interim relief.
  • Even if the sale deed was executed without consideration, the appropriate remedy may be recovery of money rather than immediate cancellation of the deed by interim order.
  • Triable issues exist; alienation during pendency is governed by the doctrine of lis pendens, and by virtue of the sale deed the defendants had become owners; a true owner cannot be restrained by a temporary injunction without proper trial determination.

On these bases, the courts below correctly found absence of a prima facie case, absence of balance of convenience in favor of the plaintiff, and lack of demonstrable irreparable loss.

Holding and Implications

Revision petition dismissed.

Direct effect: The concurrent orders of the trial court and District Judge dismissing the application under Order 39 Rules 1 & 2 CPC are upheld; the petition was found devoid of merits. The opinion does not purport to lay down any new legal precedent beyond the application of established principles governing interim injunctions and proof of fraud in civil suits.

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    PARAG AGNIHOTRI v. MOHAN SINGH DAGAR AND ANOTHER

    Present:Mr. Balwinder Singh, Advocate for the petitioner. **** RAJ MOHAN SINGH, J.

    [1]. Petitioner has preferred this revision petitioner against the order dated 06.07.2018 passed by the Addl. Civil Judge (Sr. Divn.) Faridabad and order dated 13.12.2018 passed by the District Judge, Faridabad vide which the application under Order

    39 Rules 1 and 2 CPC was dismissed concurrently.

    [2]. Plaintiff filed a suit for declaration by way of cancellation of sale deed with consequential relief of permanent injunction and for possession and in alternative for recovery of Rs.69,69,000/-. Along with the suit, an application under Order

    39 Rules 1 and 2 CPC was filed.

    [3]. The trial Court dismissed the application vide the impugned order on the ground that all the three essential ingredients for grant of temporary injunction are missing in the present case.

    [4]. It was observed by the trial Court that the plaintiff had challenged the sale deed dated 30.08.2016 and consequent mutation sanctioned in favour of the defendant on the ground of fraud. Plaintiff claimed himself to be mentally retarded and the defendant got executed the sale deed by taking benefit of his state of health.

    [5]. Plaintiff has alleged fraud in execution of the sale deed. The civil cases are to be decided on the basis of preponderance of probability and the plea of fraud has to be proved like a trial of criminal case. Both the parties would get opportunity to lead their evidence. The sale deed was executed on 30.08.2016 and the same was assailed on 04.01.2018. Even if the sale deed was executed without consideration, the remedy available to the petitioner is to seek recovery of amount, rather to seek cancellation of sale deed. The cancellation of sale deed on the basis of fraud requires leading of evidence. Therefore, when the case of the plaintiff was tested at the threshold of three golden principles for grant of temporary injunction, the same was found to be lacking on material particulars and the case did not fall within the ambit of existence of prima facie case, balance of convenience and causing irreparable loss to the plaintiff in the event of not granting temporary injunction.

    [6]. Triable issues are involved in the present case. In the event of alienation of the property during pendency of the trial, the transaction would be hit by doctrine of lis pendens. By virtue of sale deed, the defendants have become owner of the property. True owner cannot be restrained by means of temporary injunction. If the sale deed was without any consideration, different course is available to the plaintiff to seek redressal and if the sale deed is challenged on the basis of fraud, then fraud has to be pleaded and proved during the trial.

    [7]. Since triable issues are involved, therefore, dismissal of the application under Order 39 Rules 1 and 2 CPC by the Courts below cannot be faulted with. This revision petition is found to be totally devoid of merits and is accordingly dismissed. May 01, 2019 (RAJ MOHAN SINGH) Atik JUDGE Whether speaking/reasoned Yes/No Whether reportable Yes/No

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    Comments

    PARAG AGNIHOTRI v. MOHAN SINGH DAGAR AND ANOTHER
    (May 1, 2019)