- (1.) THIS appeal is directed against the order dated 2.8.2013 passed by the trial court, whereby while partly allowing the application filed under Order XXXIX, Rule 1 & 2 CPC by the appellant plaintiff applicant the trial court has restrained the respondent Murli Agarwal from further transferring the suit property, however, he has been permitted to raise construction at his own risk and peril on his filing an undertaking that in case the suit filed by the plaintiff succeeds, then he would not claim any right based on such construction.
(2.) THE suit was filed by the appellant seeking partition of the suit property claiming 1/27th share in the property and as the suit property had been transferred by registered sale deed dated 20.9.2010 to respondent Murli, relief regarding the said sale being declared void was also sought. Alongwith the suit, an application seeking temporary injunction was also filed. A reply to the application contesting the contents and prayer was filed, which has been decided by the impugned order dated 2.8.2013.
(3.) THE trial court found a prima facie case in favour of the appellant, but while dealing with the aspects relating to balance of convenience and irreparable injury noticing the facts which had come on record on account of the Commissioner Report and photographs indicating that the construction which stood at the site had already been demolished and there was a big crater and a likelihood of the surrounding houses being under threat on account of the said demolition, the trial court found that the balance of convenience was in favour of passing the order as passed by it.;