AIR 2018 (NOC) 114 (KAR.) ::2017 (4) AKR 129

Karnataka High Court

Hon'ble Judge(s): B. Veerappa , J

(A) Civil Procedure Code (5 of 1908) O. 43, R. 1(r) ' ” Appeal against order granting/refusing temporary injunction ' ” Appellate court cannot decide pending suit on merits. (Para 37)

(B) Civil Procedure Code (5 of 1908) O. 39, Rr. 1, 2 ' ” Temporary injunction ' ” Conduct of party ' ” Relevant consideration to decide grant/refusal ' ” Party, who has kept quiet for long and allowed other to deal with property ' ” Would not be entitled to temporary injunction. (Para 39)

(C) Civil Procedure Code (5 of 1908) O. 39, Rr. 1, 2 ' ” Temporary injunction ' ” Conduct of applicant ' ” Suit for partition ' ” Filed over two decades after plaintiff attained majority ' ” Defendants in possession of suit property for long period ' ” Had created third party interest in suit property ' ” Plaintiff, who never attempted any act of possession for all these years, not entitled to injunction restraining defendants from dealing with property. (Para 39)

(D) Civil Procedure Code (5 of 1908) O. 39, Rr. 1, 2 ' ” Temporary injunction ' ” Restraining defendants, co-owners from alienating, encumbering suit property ' ” Plaintiff claiming to be co-owner filing partition suit 24 yrs. after attaining majority ' ” Fact that defendants alienated certain properties and entered into registered development agreements, admitted in plaint, but not challenged ' ” No clarity in plaint as to properties that are alienated and which are still joint ' ” Developers not made party ' ” Moreover transactions before and after suit would not be binding on plaintiff in case of his success ' ” Thus no irreparable loss would occasion to plaintiff by refusal of injunction ' ” Plaintiff not entitled to grant of injunction. (Para 45,47,49)