Chattisgarh High Court
Lata Bai vs Geeta Bai on 22 August, 2022
-1-
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (227) No.279 of 2022
1. Lata Bai W/o Murit Ram Sahu, Aged About 50 Years, Resident Of
C-1, C, HIG-15, Behind Niharika Talkiz Korba, District : Korba,
Chhattisgarh
2. Murit Ram Sahu S/o Chamru Ram Sahu, Aged About 64 Years,
Resident Of C-1, C, HIG-15, Behind Niharika Talkiz Korba,
District : Korba, Chhattisgarh
3. Ravikant Sahu S/o Murit Ram Sahu, Aged About 39 Years,
Resident Of C-1, C, HIG-15, Behind Niharika Talkiz Korba,
District : Korba, Chhattisgarh
4. Rashmi Sahu D/o Murit Ram Sahu, Aged About 37 Years,
Resident Of C-1, C, HIG-15, Behind Niharika Talkiz Korba, District
-Korba, Chhattisgarh.
----Petitioners
Versus
1. Geeta Bai W/o Murit Ram Sahu, Aged About 55 Years, Resident
Of Rani Road, Purani Basti, Korba, District : Korba, Chhattisgarh
2. Shrikant Sahu S/o Murit Ram Sahu, Aged About 29 Years,
Resident Of Rani Road, Purani Basti, Korba, District- Korba,
Chhattisgarh.
3. Rajnikant Sahu S/o Murit Ram Sahu, Aged About 26 Years,
Resident Of Rani Road, Purani Basti, Korba, District - Korba,
Chhattisgarh.
4. Gaurav Kant Sahu S/o Late Sashikant Sahu, Aged About 12
Years, Resident Of - C-1, C, HIG-15, Behind Niharika Talkiz Korba,
District Korba, Chhattisgarh.
Represented By Mamta Sahu (through Legal Guardian Mother)
5. Garvkant Sahu S/o Late Sashikant Sahu, Aged About 10 Years
Resident Of -C-1, C, HIG-15, Behind Niharika Talkiz Korba, District
Korba, Chhattisgarh.
Represented By Mamta Sahu (through Legal Guardian Mother)
6. Mamta Sahu W/o Late Sashikant Sahu, Aged About 36 Years,
Resident Of -C-1, C, HIG-15, Behind Niharika Talkiz Korba, District
- Korba, Chhattisgarh.
----Respondents
For Petitioners : Mr. Prakash Tiwari, Advocate.
For Respondents : Mr. Ashutosh Shukla, Advocate.
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
22-08-2022
Heard.
1. The defendants have preferred this Writ Petition against the order
passed by Additional District Judge (F.T.C.), Korba, C.G. in
Miscellaneous Civil Appeal No.03/2020, dated 19.04.2022,
whereby the appeal preferred by them under Order 43 Rule 1(r) of
C.P.C. has been dismissed and the order passed by the learned 3rd
Civil Judge, Class-I, Korba in Civil Suit No.44A/2016 dated
20.01.2020 has been affirmed, whereby the application moved by
the plaintiffs under Order 39 Rule 1 and 2 of C.P.C. seeking
temporary injunction was allowed and the defendants were
restrained from alienating suit property or any part of suit property.
2. The plaintiffs/respondents No.1, 2 and 3 have filed the Civil suit
under Sections 34, 36 and 22 of Specific Relief Act, 1963 seeking
partition of the suit property and also for injunction. The application
under Order 39 Rule 1 and 2 of C.P.C. was also moved by the
plaintiffs before the learned trial Court. After due consideration, the
learned trial Court vide order dated 20.01.2020 restrained the
defendants from creating third party interest, by alienating the suit
property. Order passed by the trial Court dated 20.01.2020 was
challenged before the lower appellate Court and vide oder dated
19.04.2022, the lower appellate Court dismissed the appeal
preferred by the petitioners herein.
3. Learned counsel for the petitioners submits that an application
under Order 7 Rule 11 of C.P.C. was moved on 29.08.2019 and
same is still pending whereas, application under Order 39 Rule 1
and 2 of C.P.C. was moved along with plaint on 04.10.2016.
4. Further, learned counsel for the petitioner submits that in the case
of Vindhya Telelinks Ltd. Vs. State Bank Of India, Rewa and
others. reported in 1995 MPLJ 575, the High Court of Madhya
Pradesh has held that the application filed under Order 7 Rule 11
of C.P.C. goes to the root of the matter, therefore, the trial Court
should decide application for rejection of the plaint first, before
considering any application for temporary injunction because if
application filed under Order 7 Rule 11 of C.P.C. is decided, there
would be no need to decide other applications.
5. It is further submitted that learned trial court has committed
illegality by deciding the application for temporary injunction and
granting the same, whereas the application for rejection of plaint is
still pending.
6. On the other hand, learned counsel for the respondents submits
that the application for temporary injunction was decided on
20.01.2020 as the one of the defendants was trying to alienate the
suit property and learned trial Court has only restrained the
defendants from creating third party interest or alienating the suit
property and it does not affect the petitioners in any manner. He
relies on the judgment passed by the Hon'ble Supreme Court in
the matter of Saleem Bhai and others Vs. State of
Maharashtra and Others reported in (2003) 1 SCC 557, where it
was held that application filed under Order 7 Rule 11 of C.P.C. can
be decided at any stage of the suit before the conclusion of the
trial.
7. I have heard learned counsel for the parties and perused the
documents and the judgments passed by the Hon'ble Supreme
Court and High Court of Madhya Pradesh.
8. The learned trial Court ought to have decided the application filed
under Order 7 Rule 11 of C.P.C. prior to deciding the application for
temporary injunction because if the application filed under Order 7
Rule 11 of C.P.C. is decided by the concerned Court, there would
be no need to decide any further application. The learned trial
Court could have occasion to decide the application under Order
39 Rule 1 and 2 of C.P.C. after rejection of the application filed
under Order 7 Rule 11 of C.P.C., therefore, the learned trial Court
has committed illegality in deciding the application filed under
Order 39 Rule 1 and 2 of C.P.C. during the pendency of the
application filed under Order 7 Rule 11 of C.P.C.
9. The case is pending since 2016 and the application under Order 7
Rule 11 of C.P.C. is also pending since 2019, therefore, I am of the
opinion that the trial Court can be directed to decide the application
filed under Order 7 Rule 11 of C.P.C. as early as possible
preferably within a period of one month. The order which has been
granted by the learned lower appellate Court does not affect rights
of either party.
10.Consequently, the petition is allowed in part, the parties shall
maintain status quo till decision of the application filed under Order
7 Rule 11 of C.P.C. and trial Court is directed to consider and
decide the same within a period of 01 month without being
influenced by the order passed, while deciding the application
under Order 39 Rule 1 and 2 of C.P.C.
11.With these observation(s)/direction(s), this petition stands
disposed of.
Sd/-
(Rakesh Mohan Pandey)
Judge
Monika
