High Court of Bombay

Prashant RambhauPathare and Ors. Vs. Respondent: Aparna Ashok Joshi and Ors.

MANU/MH/4205/2023

16.10.2023

Contract

Relief of temporary injunction is discretionary, Court would refuse it to a party who is not consistent in his/her stand

Present Appeal is filed challenging Order passed by the trial Court rejecting application filed by Appellants/Plaintiffs for grant of temporary injunction.

Whether Plaintiffs would succeed in establishing link by first succeeding in the amendment application and then in proving the contents of amended plaint, is something which would be clear at the end of the Trial. As on the date of the passing of the impugned order, Plaintiffs miserably failed to make out any prima facie case for grant of any temporary injunction.

Relief of temporary injunction is a discretionary relief. The Court would refuse the equitable relief of temporary injunction to a party who is not consistent in his/her stand. Plaintiff first pleaded that the amount of Rs. 1,73,00,000was paid towards purchase of suit flats and shop. Now in amendment he wants to suggest that the payment was towards purchase of another property and the agreement for sale of suit flats and shop was executed by way of 'adjustment'. When Plaintiff took a calculated chance of waiting for over 4 years for execution of agreement for sale and filed the Suit only after execution of Deed of Assignment dated 16 May 2018, the question that arises is whether Defendants (and especially the subsequent purchasers) can be made to suffer prejudice indefinitely till Plaintiffs establish their varying stands.

Grant of temporary injunction puts a fetter on right of Defendants (especially the subsequent purchasers). On the other hand, refusal of injunction would place Plaintiffs in the same position as they were since 2013 after alleged payment of Rs. 1,73,00,000. It must also be borne in mind that Plaintiffs have also made a prayer for refund of amount of consideration along with interest and compensation. Since Plaintiffs do not appear to be consistent in respect of their stand, the discretionary relief of temporary injunction could not have been granted in their favour by the Trial Court. The trial Court has rightly rejected application for temporary injunction. Appeal dismissed.

Tags : Injunction Grant Discretion

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