Shiv Kumar vs Kunwar Lal
2022 Latest Caselaw 7368 Chatt

                                   1

                                                                  NAFR


           HIGH COURT OF CHHATTISGARH, BILASPUR
                       WP227 No. 759 of 2022
    Shiv Kumar, S/o Late Shri Bhagirathi, Aged About 58 Years, R/o
     Village- Budera, Post Office- Kharora, Tahsil & District Raipur,
     District : Raipur, Chhattisgarh.
                                                         ---- Petitioner
                                Versus
   1. Kunwar Lal, S/o Jeevan Lal, Aged About 42 Years, R/o Bartara,
      Post Office- Godi, Tahsil- Arang, District : Raipur, Chhattisgarh
   2. Shankar Lal Gilhare, S/o Charan Giulhare, Aged About 33 Years,
      R/o House No. 03, Ward No. 03, Ward No. 02, Kharora, Tahsil
      And District Raipur, District : Raipur, Chhattisgarh
   3. State of Chhattisgarh Through Collector- Raipur, Chhattisgarh
   4. Neera Bai, D/o Late Shri Bhagirathi, Aged About 60 Years, R/o
      Village Budera, Post Office- Kharora, Tahsil And District Raipur,
      Chhattisgarh
   5. Saraswati, Wd/o Late Pawan Kumar, Aged About 48 Years, R/o
      Village Budera, Post Office- Kharora, Tahsil & District Raipur,
      Chhattisgarh
   6. Chetan Kumar, S/o Late Pawan Kumar, Aged About 27 Years,
      R/o Village Budera, Post Office- Kharora, Tahsil & District Raipur,
      Chhattisgarh
   7. Anuradha, D/o Late Pawan Kumar, Aged About 30 Years, R/o
      Village Budera, Post Office- Kharora, Tahsil And District Raipur,
      Chhattisgarh
   8. Chandrakanta (Chandrakala), D/o Late Pawan Kumar, Aged
      About 23 Years, R/o Village Budera, Post Office- Kharora, Tahsil
      And District Raipur, Chhattisgarh
   9. Khusbhoo, D/o Late Pawan Kumar, Aged About 23 Years, R/o
      Village Budera, Post Office- Kharora, Tahsil And District Raipur,
      Chhattisgarh


                                                     ---- Respondents

For Petitioner                 :Mr. Sourabh Sahu, Adv.
For Respondent No.3/State      :Mr. Avinash K. Mishra, G.A.

Hon'ble Shri Justice Deepak Kumar Tiwari Order on Board 07.12.2022

1. Heard on admission.

2. This petition has been filed challenging the order dated 17.10.2022 passed by the 2nd Civil Judge Class-I, Raipur, D (C.G.) in Civil Suit No. 454A/2022 whereby the application preferred by the petitioner/plaintiff under Order 39 Rule 3 of CPC for granting ex-parte injunction has been dismissed.

3. Learned counsel for the petitioner submits that petitioner/plaintiff has filed a suit for declaration of permanent injunction and the defendant No.1 has mutated the suit land in his name and also sold the suit property bearing Khasra No.16 total are 4.252 Hectare to the defendant No.2. In such suit, the petitioner has moved an application for temporary injunction as well as the application under Order 39 Rule 3 of CPC which has been dismissed by the impugned order. He further submits that during the pendency of civil suit the Tehsildar has erroneously mutated the name and the plaintiff was in possession of the suit land, therefore, till the decision of the case, the possession of the plaintiff is to be protected. Reliance has been placed on the judgment rendered by Hon'ble Supreme Court in the matter of Morgan Stanley Mutual Fund Vs. Kartick Das reported in (1994) 4 SCC 225.

4. Heard counsel for the petitioner and perused the documents annexed with the petition with utmost circumspection.

5. In the case of Morgan Stanley Mutual fund (supra), it was held by the Supreme Court in para 36 which reads thus:- As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the court in the grant of ex parte injunction are-

(a) whether irreparable or serious mischief will ensue to the plaintiff;

(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;

(c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;

(d) the court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction;

(e) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application.

(f) even if granted, the ex parte injunction would be for a limited period of time.

(g) General principles like prima facie case balance of convenience and irreparable loss would also be considered by the court.

6. Reverting back to the facts of the present case, it is clear that in the plaint averments it has only been mentioned that about 30 to 35 years ago, family settlement has been arrived at between the parties.

7. Considering the fact that Revenue Court has passed the order 30.09.2021 for partition of the account and that power has been vested to the Revenue Authority under Section 178 of Chhattisgarh Land Revenue Code for partition of holdings. After such partition, a sale deed has also been executed and considering all such aspects, the trial Court does not find a good case to pass ex-parte order for injunction, therefore, this Court do not find any error or illegality or infirmity in the impugned order. The order is hereby affirmed, however, the concerned Court is directed to decide the main application under Order 39 Rule 1 & 2 of CPC in expeditious manner preferably within a period of one month after receiving the order.

8. With the aforesaid observation, the petition stands disposed of.

Sd/-

(Deepak Kumar Tiwari) Judge

Ruchi