Gujarat High Court
Vasantbhai Kirtilal Shah vs Subhashbhai Premaji Bhati (Rami) on 18 July, 2025
NEUTRAL CITATION
C/AO/215/2024 JUDGMENT DATED: 18/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 215 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/APPEAL FROM ORDER NO. 215 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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VASANTBHAI KIRTILAL SHAH
Versus
SUBHASHBHAI PREMAJI BHATI (RAMI)
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Appearance:
SHRENIK R JASANI(9486) for the Appellant(s) No. 1
MR DEVARSHI C SHAH(5545) for the Respondent(s) No. 1
MR SAURABH G AMIN(2168) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 18/07/2025
ORAL JUDGMENT
1. The present Appeal from Order is filed under Order 43 rule 1(r) of CPC thereby challenged the order dated 13.01.2024 passed by the 5th Additional Senior Civil Judge, Ahmedabad (Rural) below Exhibit 5 in Special Civil Suit No. 158 of 2021 whereby injunction application filed by respondent is partly allowed.
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2. The parties will be referred as far as possible as per their original position in the suit.
Facts of the case
3. The Respondent herein is original plaintiff of Special Civil Suit No. 158 of 2021 whereas, Appellant is original defendant in the suit. The suit is filed seeking cancellation of registered sale-deed dated 12.02.2021 allegedly executed by appellant-defendant in his own favour by misusing power of attorney of plaintiff given to defendant.
3.1 It is the case of the plaintiff that in the year 2013, he was required money for his business and personal reasons, contacted the defendant who agreed to pay of Rs. 30 lacs on interest. It is further submitted that Rs. 25 lakhs was paid through cheque in the month of April, 2013 and Rs. 5 lakhs in the month of July, 2013, thereby in all Rs. 30 lakhs was paid by defendant to the plaintiff. It is further alleged that plaintiff was used to pay interest regularly to defendant till 2015.
3.2 When the plaintiff was required further money of Rs.10 lakhs, the defendant having agreed to pay such amount but by now principal amount which due and payable would be Page 2 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined Rs.40 lakhs. So, the security was sought by the defendant from plaintiff. As such defendant having no licence of money lending, could not officially charged/received interest from the plaintiff which was agreed 4% monthly interest i.e. 48% annually. The plaintiff had agreed to pay Rs. 1,60,000/- per month to defendant as interest on the aforesaid principal amount. So, one registered agreement to sell dated 22.05.2015 (herein after referred to as ATS), Memorandum of Understanding (herein after referred to as MoU) as well as power of attorney (herein after referred as PoA) executed by the plaintiff in favour of defendant in relation to one immovable property owned by plaintiff, which is subject matter of suit. The parties have agreed for total Rs. 92 lakhs as a sale consideration which according to plaintiff was much less amount as compared to market value of suit property. As plaintiff had no other option but to agree execute said agreements/PoA.
3.3 As per ATS executed between the parties, possession of suit property was not handed over to the defendant and it was agreed to be valid for a period of one year only i.e. 22.05.2015 to 21.05.2016. It was further agreed that principal amount paid by the defendant to the plaintiff to be returned back to the defendant within one year. It was agreed that defendant would be entitled to receive Rs.
Page 3 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined 1,60,000/- as monthly mesne profit and it would be adjusted against total sale consideration at the time of execution of sale-deed.
3.4 It is further the case of the plaintiff that he has paid interest amount as well as principal amount to the defendant as agreed between the parties and obtained receipts in that regards from the defendant which was produced on record of the suit. According to plaintiff, nothing was due and payable by him to defendant.
3.5. When the plaintiff sought for cancellation of such ATS, MoU and PoA, the defendant wants under one or other pretext delayed the matter and in midst of the same, Covid- 19 situation occurred and whole country was affected and due to such reason, the plaintiff could not secured cancellation of ATS, MoU and PoA.
3.6 The defendant under the guise of PoA given by the plaintiff in relation to suit property, executed registered sale-deed on 12.02.2021 in favour of himself, which was never within the knowledge of plaintiff and in fact the plaintiff was neither signatory to such sale- deed nor handed over the possession, though wrongly stated in the sale-deed that defendant was put in possession. So, when the plaintiff Page 4 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined came to know about such execution of sale-deed by defendant and having received its copy from the Sub Registrar concern on 09.04.2021, immediately there-after the aforesaid suit came to be filed against the defendant.
3.7 It is contended by the plaintiff that sale consideration which was figured for sum Rs. 92 lakhs on which stamp duty having being paid of Rs.4,50,800/-. As such, it was inadequate sale consideration less than market value of suit property and so also, Government fixed rate (Jantri rate), defendant was directed by registrar to pay additional stamp duty. So, the defendant was required to pay additional stamp duty of Rs.6,98,412/- which was in fact paid by the defendant. According to the plaintiff, it would itself suggest that ATS/ MoU were not executed for sell of suit property in favour of defendant and in fact, sale consideration fixed between the parties was much below market value.
3.8 The defendant has appeared in the suit and contested it on all counts. It is refuted every facts claimed by the plaintiff in his suit. The defendant came out with a plea that there was in fact ATS/MoU executed between the parties, which was registered one and on the basis of PoA which was never cancelled by the plaintiff, the defendant had executed sale- deed in his favour. It is denied that there was no ATS/MoU Page 5 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined between the parties and so also denied the fact that defendant has received interest of Rs. 1,60,000/- per month from the plaintiff. It is further denied that to get security against amount paid by defendant to plaintiff i.e. Rs. 40 lakh, ATS/MoU and PoA was executed in favour of defendant by the plaintiff. According to defendant, plaintiff has neither made out any prima facie case, balance of convenience, nor any irreparable loss would cause to plaintiff, if injunction as prayed for, not granted.
3.9 After taking into account the pleadings of the parties and the documents which are submitted in support of their pleadings, the trial Court has found that there was a prima- facie case and balance of convenience in favour of plaintiff but found that there would not be any irreparable loss caused to the plaintiff which cannot be compensated into terms of money. Nonetheless, the trial Court has partly allowed injunction application thereby, directed the defendant not to sale, mortgage, gift etc. and or not transfer the suit property in any manner whatsoever to third party till final disposal of the suit.
3.10 Being aggrieved and dissatisfied with the aforesaid order of the trial Court, the defendant has preferred the present Appeal from Order.
Page 6 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined Submission of Appellant-original defendant 4.0 Learned advocate Mr. Shrenik R. Jasani for the appellant would submit that the trial Court has manifestly erred in granting injunction in favour of plaintiff especially when arrived at conclusion that there was no irreparable loss caused to the plaintiff. He would further submit that unless and until the plaintiff made out case whereby, proved prima- facie case, balance of convenience and irreparable loss, no stay could have been granted in favour of the plaintiff. It is submitted that as per settled legal position of law, even if out of the aforesaid three ingredients, one is missing while seeking injunction, no stay can be granted in favour of the plaintiff.
4.1 Learned advocate Mr. Jasani would respectfully submit that it is undeniable fact that ATS/MoU was executed in favour of defendant in relation to suit property as such there was PoA executed by plaintiff in favour of the defendant. Thereby, the defendant is entitled to get execute sale-deed in his favour which was done so. It is submitted that the trial Court has without appreciating the aforesaid aspect of the case and not properly appreciated the terms of ATS/MoU materially erred in coming to the conclusion that plaintiff has Page 7 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined made out prima-facie case.
4.2 Learned advocate Mr. Jasani would further submit that trial Court has completely misconstrued the terms of ATS/MoU while granting injunction in favour of plaintiff inasmuch as, it is not appreciated by the trial Court that the plaintiff has neither re-pay Rs. 40 lakhs nor paid any mesne profit as agreed between the parties, thereby, as per the terms of ATS/MoU, the defendant was entitled to execute the sale-deed. It is submitted that if the amount of Rs.40 lakh plus every month mesne profit Rs. 1,60,000/- which was also due and payable by the plaintiff to the defendant would be considered then, entire sale consideration was received by the plaintiff and accordingly, sale-deed executed in favour of defendant was legal and valid.
4.3. Learned advocate Mr. Jasani would respectfully submit that when plaintiff has not challenged the impugned order by way of an independent appeal and the present appeal filed at the instance of defendant, the plaintiff cannot challenge finding recorded against him by the trial Court in relation to irreparable loss. It is submitted that if the plaintiff was aggrieved by any finding so recorded by the trial Court while passing the impugned order, it would be incumbent upon the plaintiff to file any independent appeal and having Page 8 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined not done so, now the plaintiff cannot questioned it. So, learned advocate Mr. Jasani would humbly request this Court that trial Court has not found that there would be any irreparable loss caused to the plaintiff, no injunction could have been granted in favour of plaintiff.
4.4 To buttress his argument, learned advocate Mr. Jasani would refer and rely upon following decisions:-
(i) Best Sellers Retail (India) Pvt. Ltd. Vs. Aditya Birla Nuvo Limited reported in 2012(6) SCC 792.
(ii) Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra)(D) Thr. Lrs. Reported in 2020(7) SCC 366.
4.5 Making the above submission, learned advocate Mr. Jasani would request this Court to allow the present Appeal from Order.
Submission of Respondent - original plaintiff
5. Learned senior advocate Mr. Mihir Joshi with learned advocate Mr. Saurabh G. Amin would submit that there is no error committed by the trial Court while granting injunction in favour of plaintiff and as such this Court has limited Page 9 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined jurisdiction to entertain the present Appeal from Order filed under Order 43 rule 1 of CPC, may not disturb the impugned order passed by the trial Court.
5.1 Learned senior advocate Mr. Joshi would further submit that the trial Court having arrived at finding that plaintiff made out prima-facie case and balance of convenience also in favour of plaintiff but erroneously observed that there would not be any irreparable loss caused to the plaintiff.
5.2 Learned senior advocate Mr. Joshi would further submit that it is open for the respondent - plaintiff to challenge the adverse finding so recorded by the trial Court i.e. irreparable loss while defending the present Appeal from Order and as such same is permissible in law. Learned senior advocate would place reliance upon the Order 41 rule 22 read with Order 43 rule 2 of CPC.
5.3 Learned senior advocate Mr. Joshi would respectfully submit that when the trial Court has correctly arrived at conclusion that prima-facie case and balance of inconvenience in favour of plaintiff, considering the nature of controversy involved in the suit vis-a-vis suit property, there would be irreparable loss caused to the plaintiff inasmuch as if not granted injunction in favour of the plaintiff, the Page 10 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined defendant would definitely deal with the suit property having surreptitiously executed in his favour.
5.4 Learned senior advocate Mr. Joshi would further submit that as per plain reading of terms of ATS/MoU would clear indicate that it was not an intention of the parties to execute ATS/MoU for execution of sale-deed in relation to suit property. It is submitted that as per terms incorporated in ATS/Mou whereby, the plaintiff was required to pay monthly mesne profit of Rs. 1,60,000/-to defendant, though not received entire sale consideration from the dependent, would indicate that such ATS/MoU was executed towards security.
5.5 Learned senior advocate Mr. Joshi would further submit that the trial Court has correctly considered such terms executed between the parties including entitlement of defendant to receive mesne profit while granting injunction in favour of plaintiff and as such the view taken by the trial Court cannot be disturbed by this Court in the present appeal. It is submitted that the conduct of defendant, who mis-used the PoA thereby executed sale deed in the year 2021 in his own favour without paying full market price of suit property to plaintiff, would itself suggest that there was no intention between the parties to sell suit property.
Page 11 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined 5.6 Learned senior advocate Mr. Joshi would further submit that the trial Court has correctly observed that if injunction sought for, would not be granted, it would create multiplicity of proceedings and in that context, it was observed in the impugned order that if such illegal act of defendant will be proved by the plaintiff, he would be entitled to receive monetary relief from the defendant. According to learned senior advocate, mere erroneous observation made by the trial Court in relation to such finding so recorded would not mean that no irreparable loss caused to the plaintiff. It is further submitted that such erroneous finding qua no irreparable loss, otherwise there is no error of law committed by the trial Court while partly allowing injunction application in favor of plaintiff.
5.7 Making the above submission, learned senior advocate Mr. Joshi would request this Court not to entertain the present Appeal from Order.
Point for determination
(i) Whether in the facts and circumstances of the case, the impugned order is either erroneous, perverse, arbitrary or suffers from any gross irregularity and illegality as alleged by Page 12 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined appellant - defendant?
(ii) Whether in absence of any cross appeal filed by the plaintiff/ respondent having not challenged the impugned order, can plaintiff be permitted to challenge the finding recorded against him by the trial Court while passing the impugned order, in relation to issue of irreparable loss?
Analysis
6. First of all I would like to deal with point for termination No. (ii) before adverting to the controversy involved in the matter.
6.1 The trial Court in his impugned order has observed that there would not be any irreparable loss which cannot be compensated in terms of money if caused to the plaintiff. So, on such finding, the defendant contending that the trial Court could not have granted injunction in favour of plaintiff as all three ingredients while granting injunction are required to be satisfied on record, out of which one is missing in the present case.
7. It is remain undisputed fact that respondent/plaintiff has not challenged the impugned order by way of an independent appeal. Nonetheless, such aforesaid finding Page 13 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined recorded by the trial Court that there would not be any irreparable loss which cannot be compensated in terms of money, can always be questioned by the respondent in the present appeal, even though he has not filed any independent appeal. Such recourse is permissible in law as per Order 41 rule 22 read with Order 43 rule 2 of CPC.
8. Such aforesaid position of law succinctly observed by the Honorable Apex Court in the case of Saurav Jain vs. A.B.P. Design reported in (2022) 18 SCC 633; wherein held as un- der:
"[21] Apart from the above findings which negate the basis and foundation of the suit, the appellant-defendant has also raised an objection to the jurisdiction of the Trial Court to entertain the present suit, given the bar on jurisdiction under the ULCRA. The appellant has submitted that the first respondent, through an artful drafting of the plaint in the course of the pleadings in the suit placed in issue the entire gamut of proceedings under the ULCRA, without impleading either the State of Uttar Pradesh or the Competent Authority under the ULCRA. At the outset, we note that the ground of lack of jurisdiction of the Trial Court over the suit was raised in the proceedings before the court of first instance. The Trial Court rejected the objection raised by the appellant-defendant on the exercise of its jurisdiction, holding that the suit for declaratory relief against the auction sale and for an injunction could be entertained. In the appeal against the judgment of the Trial Court filed by the first respondent before the High Court, the appellant did not file a cross-objection against this finding of the Trial Court on the exercise of its jurisdiction. The appellant has urged before this Court that the jurisdiction of the civil court is impliedly excluded under the provisions of the ULCRA. Reliance has been placed by the appellant on Order XLI Rule 22 of the CPC Page 14 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined to argue that a party, in whose favour the civil court has decreed a suit, can raise arguments against findings without having to file a cross- objection, in the appeal.
[22] Order XLI Rule 22(1) reads in the following terms:
"(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
[Explanation. - A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.]"
Order XLI Rule 22 CPC was amended by the CPC Amendment (Act 104 of 1976), with effect from 1 February 1977. The text of the pre-amendment and post-amendment provision is reproduced below:
Order XLI Rule 22 prior to its amendment Order XLI Rule 22 as amended by Act 104 of 1976 Order XLI Rule 22 prior to its Order XLI Rule 22 as amended amendment by Act 104 of1976 R.22. Upon hearing, respondent R.22. Upon hearing, respondent may object to way object to decree as if he had preferred a decree as If he had preferred a separate appeal- separate appeal-
(1) Any respondent, though he may not have appealed from (1) Any respondent, though he any part of the decree, may not may not have appealed from only support the decree on any any part of the decree, may not of the grounds decided against only support the decree [but Page 15 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-
objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant him in the Court below, but take Court within one month from the any cross-objection to the date of service on him or his decree which he could have pleader of notice of the day taken by way of appeal, fixed for hearing the appeal, or provided he has filed such within such further time as the objection in the Appellate Court Appellate Court may see fit to within one month from the date allow.
of service on him or his pleader [Explanation. - A respondent of notice of the day fixed for aggrieved by a finding of the hearing the appeal, or within Court in the judgment on which such further time as the the decree appealed against is Appellate Court may see fit to based may, under this rule, file allow. cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.] (emphasis supplied) [23] The effect of the amendment was considered in Banarsi & Ors. v. Ram Phal, 2003 9 SCC 606. , where this Court held that after the 1976 amendment, the respondent could file cross-objections against the 'findings' of the lower court, while previously cross- objections could only be filed when the decree of the lower court was partly against the respondent. Justice R.C Lahoti (as the learned Chief Justice then was), speaking for the two judge bench observed:
Page 16 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined "10-. [ ] There may be three situations:
(i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent.
(ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent.
(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.
11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross-objection. The law remains so post-amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross- objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross-objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In the pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent." (emphasis supplied) [24] Order XLI Rule 22(2) of the CPC states that a "cross-objection shall be filed in the form of a memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the Page 17 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined memorandum of appeal, shall apply thereto." This Court in S. Nazeer Ahmed v. State Bank of Mysore, 2007 11 SCC 75. elaborated on the form of objections made under Order XLI Rule 22 CPC. In Nazeer Ahmed (supra), the respondent had filed a suit for enforcement of an equitable mortgage. In deciding the suit, the Trial Court rejected the argument of the appellant-defendant and held that the suit was not barred by Order II Rule 2 of the CPC. However, the court dismissed the suit on grounds of limitation. On an appeal filed by the respondent before the High Court, the High Court observed that although the suit was barred by Order II Rule 2 of the CPC, the appellant had not challenged this finding of the Trial Court by filing a memorandum of cross-objection. Thus, the High Court granted the respondent a decree against the appellant. When this finding of the High Court was assailed before this Court, Justice P.K Balasubramanyam held that a memorandum of cross-objection needs to be filed while taking recourse to Order XLI Rule 22 only when the respondent claims a relief that had been rejected by the trial court or seeks an additional relief apart from that provided by the trial court. The court held that a memorandum of objection need not be filed when the appellant only assailed a 'finding' of the lower court:
"7. The High Court, in our view, was clearly in error in holding that the appellant not having filed a memorandum of cross- objections in terms of Order 41 Rule 22 of the Code, could not challenge the finding of the trial court that the suit was not barred by Order 2 Rule 2 of the Code. The respondent in an appeal is entitled to support the decree of the trial court even by challenging any of the findings that might have been rendered by the trial court against himself. For supporting the decree passed by the trial court, it is not necessary for a respondent in the appeal, to file a memorandum of cross- objections challenging a particular finding that is rendered by the trial court against him when the ultimate decree itself is in his favour. A memorandum of cross-objections is needed only if the respondent claims any relief which had been negatived to him by the trial court and in addition to what he has already been given by the decree under challenge. We have therefore no hesitation in accepting the submission of the learned counsel for the appellant that the High Court was in error in proceeding on the basis that the appellant not having filed a Page 18 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined memorandum of cross-objections, was not entitled to canvas the correctness of the finding on the bar of Order 2 Rule 2 rendered by the trial court."
(emphasis supplied) [25 It is apparent from the amended provisions of Order XLI Rule 22 CPC and the above authorities that there are two changes that were brought by the 1976 amendment. First, the scope of filing of a cross-objection was enhanced substantively to include objections against 'findings' of the lower court; second, different forms of raising cross-objections were recognised. The amendment sought to introduce different forms of cross-objection for assailing the findings and decrees since the amendment separates the phrase "but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour" from "may also take any cross-objection to the decree" with a semi colon. Therefore, the two parts of the sentence must be read disjunctively. Only when a part of the decree has been assailed by the respondent, should a memorandum of cross-objection be filed. Otherwise, it is sufficient to raise a challenge to an adverse finding of the court of first instance before the appellate court without a cross objection.
[26] The applicability of the principle in Order XLI Rule 22 CPC to proceedings before this Court under Article 136 of the Constitution was considered by a Constitution Bench in the decision in Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji, 1965 AIR(SC) 669. . Justice JR Mudholkar overruled the judgment of the three judge bench in Vashist Narain Sharma v. Dev Chandra, 1955 1 SCR 509 which had rejected the argument of the respondent that a party could raise arguments on the 'findings' that were against him, while supporting the judgment. It was held that Order XLI Rule 22 of the CPC does not have application to an appeal under Article 136. In Ramanbhai Ashabhai Patel (supra), this Court held that the provisions of Order XLI Rule 22 of the CPC are not applicable to the Supreme Court and the rules of the Supreme Court do not provide for any analogous provisions. However, it was held that this deficiency must be supplemented by drawing from CPC:
"18. [ ] Apart from that we think that while dealing with the Page 19 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined appeal before it this Court has the power to decide all the points arising from the judgment appealed against and even in the absence of an express provision like Order [4]1 Rule 22 of the Code of Civil Procedure it can devise the appropriate procedure to be adopted at the hearing. There could be no better way of supplying the deficiency than by drawing upon the provisions of a general law like the Code of Civil Procedure and adopting such of those provisions as are suitable. We cannot lose sight of the fact that normally a party in whose favour the judgment appealed from has been given will not be granted special leave to appeal from it. Considerations of justice, therefore, require that this Court should in appropriate cases permit a party placed in such a position to support the judgment in his favour even upon grounds which were negatived in that judgment. [ ]"
(emphasis supplied) Expanding on this further, a two judge Bench (Justice R.C Lahoti speaking for himself and Justice Brijesh Kumar) of this Court in Jamshed Hormusji Wadia v. Port of Mumbai, 2004 3 SCC 214. observed:
"35. A few decisions were brought to the notice of this Court by the learned Additional Solicitor General wherein this Court has made a reference to Order 41 Rule 22 CPC and permitted the respondent to support the decree or decision under appeal by laying challenge to a finding recorded or issue decided against him though the order, judgment or decree was in the end in his favour. Illustratively, see Ramanbhai Ashabhai Patel [Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji, 1965 AIR(SC) 669] , Northern Railway Coop. Credit Society Ltd. [Northern Railway Coop. Credit Society Ltd. v. Industrial Tribunal, 1967 AIR(SC) 1182] and Bharat Kala Bhandar (P) Ltd. [Bharat Kala Bhandar (P) Ltd. v. Municipal Committee, Dhamangaon, 1966 AIR(SC) 249] The learned Additional Solicitor General is right. But we would like to clarify that this is done not because Order 41 Rule 22 CPC is applicable to appeals preferred under Article 136 of the Constitution; it is because of a basic principle of justice applicable to courts of superior jurisdiction. A person who has entirely succeeded before a court or tribunal below Page 20 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined cannot file an appeal solely for the sake of clearing himself from the effect of an adverse finding or an adverse decision on one of the issues as he would not be a person falling within the meaning of the words 'person aggrieved'. In an appeal or revision, as a matter of general principle, the party who has an order in his favour, is entitled to show that even if the order was liable to be set aside on the grounds decided in his favour, yet the order could be sustained by reversing the finding on some other ground which was decided against him in the court below. This position of law is supportable on general principles without having recourse to Order 41 Rule 22 of the Code of Civil Procedure. Reference may be had to a recent decision of this Court in Nalakath Sainuddin v. Koorikadan Sulaiman, 2002 6 SCC 1 and also Banarsi v. Ram Phal, 2003 9 SCC 606 . This Court being a court of plenary jurisdiction, once the matter has come to it in appeal, shall have power to pass any decree and make any order which ought to have been passed or made as the facts of the case and law applicable thereto call for. Such a power is exercised by this Court by virtue of its own jurisdiction and not by having recourse to Order 41 Rule 33 CPC though in some of the cases observations are available to the effect that this Court can act on the principles deducible from Order 41 Rule 33 CPC. It may be added that this Court has jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. Such jurisdiction is conferred on this Court by Article 142 of the Constitution and this Court is not required to have recourse to any provision of the Code of Civil Procedure or any principle deducible therefrom. However, still, in spite of the wide jurisdiction being available, this Court would not ordinarily make an order, direction or decree placing the party appealing to it in a position more disadvantageous than in what it would have been had it not appealed."
(emphasis supplied) [27] On a perusal of the above authorities, it is evident that the principle stipulated in Order XLI Rule 22 of CPC can be applied to petitions under Article 136 of the Constitution because of this Court's wide powers to do justice under Article 142 of the Page 21 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined Constitution. Since the principle in Order XLI Rule 22 of the CPC furthers the cause of justice by providing the party other than the 'aggrieved party' to raise any adverse findings against them, this Court can draw colour from Order XLI Rule 22 CPC and permit objections to findings.
[28] From the above it has been established that it not necessary that a challenge to the adverse findings of the lower court needs to be made in the form of a memorandum of cross-objection. In the present case, we note that the appellant had raised an objection to the jurisdiction of the Trial Court for entertaining the suit on the ground that an injunction and declaratory relief could not have been given. Although the Trial Court passed a decree in favour of the appellant, it had decided against the appellant on the question of jurisdiction. This finding was not challenged by the appellant before the High Court in the form of a memorandum of cross- objection. The judgment of the High Court makes no mention that a plea of lack of jurisdiction was taken by either the appellant or the MDA. Before this Court, the appellant has not filed the counter- affidavit it had filed before the High Court. Thus, the conclusion that emanates from the record before us is that the ground of jurisdiction was only raised by the appellant before the Trial Court and not before the High Court. In effect then, this Court would have to adjudicate on a plea, which did not form a part of the decision of the High Court in challenge before us."
(emphasis supplied) 8.1 So, in view of said clear pronouncement of law, respondent-plaintiff in absence of filing any cross-appeal from order can always questioned finding of any fact recorded against him by trial Court while passing impugned order. Thus, issue No. (ii) Answered accordingly.
8.2 In view of the aforesaid position of law, it is required to be considered as to whether the trial Court has committed Page 22 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined any gross error of law while arriving at finding that there would not be any irreparable loss to the plaintiff, which cannot be compensated in terms of money. Such aspect of the matter would be examined while answering point no. (i).
9. Before, adverting to the issues so germen in the appeal, it is required to be kept in mind that the present Appeal from Order is filed under the provisions of Order XLIII Rule 1 (r) of the Code and challenge in this appeal is a discretionary order passed by the learned trial Judge under the provisions of Order XXXIX Rules 1 and 2 of the CPC.
9.1 In the case of Wonder Ltd. and another V/s. Antox India Pvt. Ltd., (1990) Supp 1 SCC 727, the Hon'ble Apex Court in para 9 of the said decision, after considering the scope of Order XLIII Rule 1(r) of the CPC in an appeal wherein, the discretionary order passed by the learned trial Court is under challenge, observed as under:-
"9. Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated Page 23 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined "...is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant 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. The court must weigh one need against another and determine where the "balance of convenience lies".
The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted." (emphasis supplied) 9.2 Recently, in a case of Ramakant Ambalal Choksi V/s Harish Ambalal Choksi reported in 2024 SCC Online SC 3538 also reiterated aforesaid principle, albeit with explaining what amounts to perversity in order having so observed as under:-
"27. The principles of law explained by this Court in Wander's (supra) have been reiterated in a number of subsequent decisions of this Court. However, over a period of time the test laid down by this Court as regards the scope of interference has been made more stringent. The emphasis is now more on perversity rather than a mere error of fact or law in the order granting injunction pending the final adjudication of the suit.Page 24 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025
NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined
28. In Neon Laboratories Ltd. v. Medical Technologies Ltd., (2016) 2 SCC 672 this Court held that the Appellate Court should not flimsily, whimsically or lightly interfere in the exercise of discretion by a subordinate court unless such exercise is palpably perverse. Perversity can pertain to the understanding of law or the appreciation of pleadings or evidence. In other words, the Court took the view that to interfere against an order granting or declining to grant a temporary injunction, perversity has to be demonstrated in the finding of the trial court.
29. In Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan, (2013) 9 SCC 221 this Court emphasised on the principles laid down in Wander (supra) and observed that while the view taken by the appellate court may be an equally possible view, the mere possibility of taking such a view must not form the basis for setting aside the decision arrived at by the trial court in exercise of its discretion under Order 39 of the CPC. The basis for substituting the view of the trial court should be malafides, capriciousness, arbitrariness or perversity in the order of the trial court. The relevant observations are extracted below:
"20. In a situation where the learned trial court on a consideration of the respective cases of the parties and the documents laid before it was of the view that the entitlement of the plaintiffs to an order of interim mandatory injunction was in serious doubt, the Appellate Court could not have interfered with the exercise of discretion by the learned Trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the learned Trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The Appellate Court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order. While we must not be understood to have said that the Appellate Court was wrong in its conclusions what is sought to be Page 25 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined emphasized is that as long as the view of the trial court was a possible view the Appellate Court should not have interfered with the same following the virtually settled principles of law in this regard as laid down by this Court in Wander Ltd. v. Antox India (P) Ltd."
(emphasis supplied)
32. The appellate court in an appeal from an interlocutory order granting or declining to grant interim injunction is only required to adjudicate the validity of such order applying the well settled principles governing the scope of jurisdiction of appellate court under Order 43 of the CPC which have been reiterated in various other decisions of this Court. The appellate court should not assume unlimited jurisdiction and should guide its powers within the contours laid down in the Wander (supra) case.
34. The burden is on the plaintiff, by evidence aliunde by affidavit or otherwise, to prove 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 precedent 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 Page 26 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined 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. (See : Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719.)
35. Any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, (1878) 1 LR 1r 331, the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey, 106 NW 814, the Court defined "perverse" as "turned the wrong way"; not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc.
37. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity. (See : Damodar Lal v. Sohan Devi, (2016) 3 SCC 78)."
(emphasis supplied) 9.3 So, in light of the limited powers of this Court, the Appellate Court can interfere with the discretionary order passed by the trial Court only in exceptional circumstances. The Appellate Court cannot 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, capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. In Page 27 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined nutshell, an appeal against exercise of discretion is said to be an appeal on principle. To put it differently, while exercising its power under Order 43 of CPC, Appellate Court cannot reassessed the entire evidence so as to come to its own conclusion substituting the conclusion arrived at by the trial Court, if two views are possible in the matter.
10. Now, adverting back to the facts of present case, the facts which are narrated herein above are not in dispute. The trial Court came to the conclusion that ATS/MoU executed between the parties were really in fact executed for sale of suit property or not, is a matter of concern and same can be decided by leading appropriate evidence. The trial Court has categorically observed that as per plaint, the plaintiff was having possession of the suit property which of-course denied by defendant. There is nothing on record to show that plaintiff has handed over the possession of the suit property in favour of defendant. The sale deed was not executed by his signature but by defendant himself executed in his favour being PoA holder of plaintiff. So in view of the aforesaid, the trial Court has believed that there is a prima facie case in favour of plaintiff.
11. The trial Court has also found that if defendant able to sell land in favour of third party during the pendency of the Page 28 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined suit, there would be multiplicity of proceedings and thereby, balance of convenience is found in favour of plaintiff.
12. When the aforesaid observations and findings recorded by the trial Court is in favour of plaintiff, it would be surprising to note that how the trial Court recorded finding that even if there would be irreparable loss caused to the plaintiff which can be compensated in terms of money.
13. It is required to be observed here that the suit property was owned by the plaintiff and as per terms of MoU (internal page-4) in a case where plaintiff fails to fulfill his promise, a right was given in favour of defendant to get sale-deed executed. In such eventuality, the defendant was entitled to get actual and vacant possession of the suit property from the plaintiff. It is remained undisputed fact that no such attempt was made by the defendant to claim/get possession of suit property from plaintiff when executed sale-deed in his favour. So, there would be reason to believe that possession was not handed over by the plaintiff in favour of the defendant.
14. It would also requires to be considered that terms of ATS and MoU would prima-facie indicate that in a case where, the plaintiff returned Rs. 40 lakhs and monthly mesne profit Page 29 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined of Rs. 1,60,000/- to defendant, such amount will have to be accepted by the defendant and accordingly such ATS/ MoU stand cancelled. The period of ATS fixed for one year. According to plaintiff, he did pay those amounts. Money receipts are produced on record of the suit. Ordinarily, if intention of the parties to sell and purchased immovable property, when entire sale consideration passed on in favour of vendor by vendee, sale would get completed on registration of sale deed. Whereas, terms of ATS/MoU speaks otherwise. So, prima-facie, bare reading of terms of ATS/ MoU would indicate that real intention of the parties was not to enter into sale agreement in relation to suit property. Of course, this aspect needs detail deliberation at hands of trial Court when received oral/documentry evidence.
15. There is another facet needs consideration would be that ATS / MoU were executed in the year 2015, whereas, registered sale-deed was executed by the defendants himself in his favour on the basis of PoA of plaintiff in the year 2021. Nonetheless, before such execution, it would not appeared from the record that plaintiff was called upon by the defendant to clear the dues and or given any idea that by adjusting the amount due and payable as per terms of such ATS/ MoU, the defendant would get execute registered sale- deed in his favour. This conduct of the defendant speaks Page 30 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined volume, which needs to be considered by the trial Court while adjudicating the suit on its merit.
16. At this stage, this Court would not like to further go deep into such above aspects as it might damage the case of any of the parties. Nonetheless, the trial Court has correctly observed that this would be a matter of trial.
17. In light of the above, if any third party right would be created by the defendant on the strength of registered sale- deed stands as on date in his favour, not only multiplicity of proceedings would arise, but so also it caused irreparable loss to plaintiff in all respects. According to my view, in the light of the aforesaid facts and after examining terms of ATS and MoU, there would be an irreparable loss caused to the plaintiff, which cannot be compensated in terms of money. The terms of irreparable loss cannot be red in isolation but requires to be taken into account and to consider it in its real sense. [See Dalpat Kumar & Anr. v. Prahlad Singh & Ors. (1992) 1 SCC 719].
18. The decision cited by the learned advocate Mr. Jasani for the appellant as such would not be applicable to the facts of present case. In the case of Best Sellers Retail (India) Pvt. Ltd (supra), the Hon'ble Apex Court having considered Page 31 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined specific pleadings of the plaintiff wherein the plaintiff itself prayed for alternative relief as damages, while seeking specific performance, in light of such fact, the Hon'ble Apex Court has refused injunction. The relevant observation of the Hon'ble Apex Court requires reproduction :-
"14. Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable. In Dalpat Kumar & Anr. v. Prahlad Singh & Ors. [(1992) 1 SCC 719] this Court held:
"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."
15. In the present case, the respondent no.1 itself had claimed in the plaint the alternative relief of damages to the tune of Rs.20,12,44,398/- if the relief for specific performance was to be refused by the Court and break-up of the damages of Rs.20,12,44,398/- claimed in the plaint was as follows:
"I. Net Book stock amount on 28.02.2010 is
Rs.1,15,97,638/-.
II. Loan amount due as on 27.01.2010 is Rs.44,81,584/-.
III. Amount due as per Statement of Accounts as on 28.02.2010 is Rs.20,65,176/-.
Page 32 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined IV. Projected Loss of profit on sales, for the balance 7 year term of the Agency Agreement amounts to a sum of Rs.10,31,00,000/-.
V. Loss of Goodwill, Reputation including amount spent on advertisement Rs.2,00,00,000/-.
VI. Loss of amount which Plaintiff would incur for relocating the store to other place in the Brigade Road, Bangalore and to continue its business for rest of the term 7 years would amount to Rs.6,00,00,000/- along with simple interest at the rate of 24% p.a. from the date of payment till realization as the same being a commercial transaction."
17. Despite this claim towards damages made by the respondent no.1 in the plaint, the trial court has held that if the temporary injunction as sought for is not granted, Liberty Agencies may lease or sub-lease the suit schedule property or create third party interest over the same and in such an event, there will be multiplicity of proceedings and thereby the respondent no.1 will be put to hardship and mental agony, which cannot be compensated in terms of money. Respondent no.1 is a limited company carrying on the business of readymade garments and we fail to appreciate what mental agony and hardship it will suffer except financial losses. The High Court has similarly held in the impugned judgment that if the premises is let out, the respondent no.1 will be put to hardship and the relief claimed would be frustrated and, therefore, it is proper to grant injunction and the trial court has rightly granted injunction restraining the partners of Liberty Agencies from alienating, leasing, sub-leasing or encumbering the property till the disposal of the suit. The High Court lost sight of the fact that if the temporary injunction restraining Liberty Agencies and its partners from allowing, leasing, sub-leasing or encumbering the suit schedule property was not granted, and the respondent no.1 ultimately succeeded in the suit, it would be entitled to damages claimed and proved before the court. In other words, the respondent no.1 will not suffer irreparable injury. To quote the words of Alderson, B. in The Attorney-General vs. Hallett [153 ER 1316: (1857) 16 M. & W.569]:
"I take the meaning of irreparable injury to be that which, if not prevented by injunction, cannot be afterwards compensated Page 33 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined by any decree which the Court can pronounce in the result of the cause."
19. Whereas, in the present case, there is no such damages claimed by the plaintiff while filing suit rather it is the specific case of the plaintiff that defendant has misused his PoA thereby, executed sale deed of suit property in his favour, which in fact owned by plaintiff.
20. Thus, in view of the aforesaid peculiar facts and circumstances of the present case and so also considering the terms of ATS/MoU, there would be an irreparable loss caused to the plaintiff, if injunction as prayed for, would not be granted in asmuch as when third party rights will be created by defendant on strength of sale deed stand as on date in his favour, there would surely multiplicity of proceeding and ultimately sufferer would be plaintiff who owned suit property.
21. Learned advocate Mr. Jasani has also placed reliance upon the decision of the Hon'ble Apex Court in the case of Dahiben (supra) would not helpful to the case of the dependent, inasmuch as the facts of that case and the present are totally different and distinct. In the case of Dahiben (supra) execution of sale-deed by vendor in favour of vendee was not in dispute but as such, the claim made by Page 34 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined the vendor, that they have not received sale consideration from vendee. Whereas, in present case, as noticed herein above, the plaintiff itself questioned the sale-deed executed by the defendant by misusing his PoA and in fact challenged sale deed on the ground that it was never agreed between the parties to sell the suit property. Thus, in case on hand, the question of non-receipt of sale consideration by the plaintiff would not arise at all.
22. The upshot of above said factors, if would be considered together, the plaintiff has not only made out prima-facie case, balance of convenience but also made out a case that there would be irreparable loss to him, which cannot be compensated in terms of money. Hence, to that extend, the findings recorded by the trial Court is erroneous, perverse and requires to be interfered by this Court, otherwise rest of the findings so recorded by the trial Court in the impugned order neither erroneous, perverse nor arbitrary.
23. When all these three factors to be considered together, plaintiff did make out case of injunction. Further, the trial Court has correctly observed that issues raised by plaintiff needs to be proved by leading evidence. As such, in light of what is observed herein above, such view taken by the trial Court is neither erroneous nor perverse. Even if a second Page 35 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined view is possible in the matter, same would not be ground to interfere with discretionary order passed by trial Court.
24. In view of ratio of aforesaid decisions of Honourable Apex Court in a case of Wonder Ltd. and another (supra) and Ramakant Ambalal Choksi (supra), if applied to the case on hand and once having not found order impugned erroneous, perverse, arbitrary or contrary to the provision of law except as observed herein above, appeal requires to be dismissed.
25. Before parting, it is made clear that any observation either made by trial Court or this Court while granting/confirming the injunction as the case may be, would not come in the way of any of parties to suit. As such, trial Court requires to decide lis between the parties as per evidence coming forth on the record of the suit. Accordingly, to decide the suit in accordance with law without being influenced by any observations made in this order or otherwise of trial Court.
Conclusion
26. In the light of the aforesaid, the impugned order does not suffers from any gross irregularity, illegality and or erroneous, perverse and contrary to any provision of law except observed hereinabove that the plaintiff would have Page 36 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025 NEUTRAL CITATION C/AO/215/2024 JUDGMENT DATED: 18/07/2025 undefined an irreparable loss, which cannot be compensated in terms of money if not granted injunction as prayed for in the impugned injunction application filed below Ex.5 in the suit.
27. In view of the forgoing reasons, no interference is required by this Court while exercising its power under Order 43 rule 1 of CPC.
28. Thus, in view of aforesaid conclusion, appeal lacks merit requires to be dismissed, which is hereby dismissed. No order as to costs. As a sequel, civil application is disposed of accordingly.
Sd/-
(MAULIK J.SHELAT,J) SALIM/ Page 37 of 37 Uploaded by SALIM(HC01108) on Wed Aug 06 2025 Downloaded on : Fri Aug 08 22:53:24 IST 2025