Himachal Pradesh High Court

Decided On: February 26 vs Chander Kanta (Now Deceased) ... on 26 February, 2021

Bench: Sandeep Sharma

       IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                     OMP No. 392 of 2020 in OMP No. 2 of 2018
                                  In Civil Suit No. 4080 of 2013




                                                                    .
                                Reserved on: February 23, 2021





                                 Decided on: February 26, 2021
     ____________________________________________________________
     Smt. Davinder Parmar and another
                                        .........Applicants/Plaintiffs





                                Versus

     Chander Kanta (now deceased) through her legal
     representatives Randeep Singh
                                       ...non-applicant/defendant





     ____________________________________________________________
     Coram
     Hon'ble Mr. Justice Sandeep Sharma, Judge.
     Whether approved for reporting1? Yes.

     ____________________________________________________________
     For the Applicants:            Mr. K.D. Sood, Senior Advocate with

                                    Mr. Sukrit Sood, Advocate.

     For the Non-applicant:         Mr. Satyen Vaidya, Senior Advocate
                                    with Mr. Bhairav Gupta, Advocate.


     ____________________________________________________________
     Sandeep Sharma, J. (Oral)

By way of instant application filed under Order XXXIX,

rules 1 and 2 read with S.151 CPC, prayer has been made

behalf of the applicants/plaintiffs (hereinafter, 'applicants') to

restrain the non-applicant/defendant from selling,

transferring and encumbering the suit property i.e. four

storeyed building known as "33, The Mall, Shimla" or leasing

out the same during the pendency of the suit. Pursuant to

Whether reporters of the Local papers are allowed to see the judgment? .

order dated 1.12.2020, whereby this Court, while directing

the non-applicant/defendant to maintain status quo qua

nature and possession of the suit property directed the non-

applicant/defendant to file reply to the application, non-

applicant/defendant has filed the reply. Specific ground with

regard to maintainability of the application has been raised

on behalf of the non-applicant/defendant.

2. For having bird's eye of the matter, certain

undisputed facts, which may be germane for the proper

adjudication of the application are that the applicants filed

Civil Suit bearing No. 4080 of 2013, titled Smt. Davinder

Parmar vs. Chander Kanta and another, for declaration to the

effect that the plaintiffs jointly are owners to the extent of

1/6th share in the four storeyed building known as "33, The

Mall, Shimla" and mutation No. 141, dated 27.7.2005 be

declared void, illegal and inoperative against the right of the

plaintiffs and they be declared in joint possession of the

property. Aforesaid suit was filed in the year 2013, but

alongwith the plaint, no application under Order XXXIX,

rules 1 and 2 CPC seeking therein restraint order, if any,

against non-applicant/defendant ever was instituted. After

completion of pleadings, court proceeded to frame issues vide

order dated 26.10.2015 and thereafter, evidence commenced.

On 9.3.2016, plaintiffs' evidence was closed in the

affirmative, as per the statement of learned counsel appearing

for the plaintiffs and thereafter, the matter repeatedly was

listed for recording evidence of the defendants. While the

evidence on behalf of the non-applicant/defendant was being

led, an application under Order VIII, rule 1A(3) read with

S.151 CPC was filed on behalf of the non-

applicant/defendant, seeking leave of the court to place on

record and prove certain documents. Though the aforesaid

application, after completion of pleadings was heard in part

on 2.6.2017 but since on 10.11.2017, none appeared on

behalf of the plaintiffs, suit having been filed by them was

dismissed in default vide order dated 10.11.2017 alongwith

all pending applications. Subsequently, in the month of

January, 2018, an application under Order IX, rule 9 read

with S.151 CPC, was filed on behalf of the

applicants/plaintiffs, praying therein for restoration of civil

suit dismissed in default on 10.11.2017, alongwith an

application under S.5 of Limitation Act, for condonation of

delay. Vide order dated 5.7.2018, delay in filing the

application bearing OMP No. 14/2018, was condoned,

however, this court having taken note of the pleadings

adduced on record by respective parties in the aforesaid

application for restoration, framed following issues vide order

dated 11.9.2018:

"OMP No. 14 of 2018

i) On the contentious pleadings of the parties, the following issues are framed: i) Whether good, sufficient and adequate cause has been made out by the

plaintiff/applicant, for recalling the order, pronounced, on 10.11.2017 ? OPP

ii) Relief.

Issues are readover and explained to the parties. No

other issue arises nor claimed by any of the parties. Now, for

plaintiff/applicant's evidence, on the aforesaid issue, subject to steps being taken, within a week, the matter be listed, on a date to be fixed by the Registry of this Court."

3. After passing of aforesaid order, evidence

commenced in the application for restoration and statement

of one AW was recorded. Since, notice issued to Harminder

Singh Parmar could not be served on account of his not being

available in the country, two weeks' time was granted to the

applicants/plaintiffs for taking fresh steps for summoning

aforesaid witness. On 27.12.2019, it transpired that the

summons issued to AW-2 have been received back unserved

with the report that Harminder Singh has gone to New

Zealand, as such, further time was granted to the

applicants/plaintiffs for taking fresh steps but, in the

meantime, applicants/plaintiffs filed OMP No. 392 of 2020,

under Order XXXIX, rules 1 and 2 CPC, praying therein to

issue restraint order against non-applicant/defendant. Vide

orders dated 1.12.2020 this Court directed the parties to

maintain status quo qua nature and possession of suit

property. After passing of aforesaid order, non-

applicant/defendants besides filing reply to this application,

also filed an application bearing OMP No. 456 of 2020 under

Order XXXIX, rule 4 CPC praying to vacate the order dated

1.12.2020 passed by this Court in OMP No. 392 of 2020 in

OMP No. 2 of 2018.

4. I have heard learned counsel for the parties and

perused the material available on record.

5. Since the question with regard to maintainability

of the application has been specifically raised by the non-

applicant/defendant, this Court deems it appropriate to

decide the same at the first instance, before going into the

merits of the case. It is not in dispute that the application

under Order XXXIX, rules 1 and 2 CPC was not filed in the

main suit, which otherwise stands dismissed in default vide

order dated 10.11.2017, rather, same has been filed in OMP

No. 14 of 2018 filed under Order IX, rule 9 CPC, wherein

prayer has been made to restore the civil suit dismissed in

default vide order dated 10.11.2017.

6. The moot question, which needs to be adjudicated

in the present case is, "whether the application under Order

XXXIX, rules 1 and 2 CPC, seeking therein restraint order

can be considered in a decided suit, especially in the

proceedings initiated under Order IX, rule 9 CPC, praying

therein for restoration of civil suit dismissed in default."

7. Mr. K.D. Sood, learned Senior Counsel duly

assisted by Mr. Sukrit Sood, Advocate, appearing for the

applicants/plaintiffs, vehemently argued that since the

application filed on behalf of applicants/plaintiffs under

Order IX, rule 9 CPC is still pending adjudication,

applicants/plaintiffs are well within their right to file an

application under Order XXXIX, rules 1 and 2 CPC, seeking

therein restraint order. Mr. Sood, learned Senior Counsel,

further contended that since this Court has already taken

cognizance of the application filed on behalf of

applicants/plaintiffs under Order IX, rule 9 CPC and in those

proceedings, evidence is being recorded, prayer made on

behalf of the applicants/plaintiffs to restrain the non-

applicant/defendant from selling, transferring, encumbering

the suit property or changing nature thereof by creating new

tenancy, deserves to be allowed. Mr. Sood, learned Senior

Counsel further contended that in case prayer made in the

aforesaid application is not accepted at this stage, very

purpose of filing civil suit No. 4080 of 2013, shall be defeated.

While claiming that the application under Order XXXIX, rules

1 and 2 CPC can be filed in proceedings filed under Order IX,

rule 9 CPC, Mr. Sood, learned Senior Counsel invited

attention of this Court to judgment rendered by Hon'ble High

Court of Allahabad in Basant Lal v. Lakshmi Chand AIR

2007 Allahabad 32. Lastly, Mr. Sood, learned Senior Counsel

submitted that even otherwise, under S.151 CPC, this Court

has inherent powers to grant interim injunction to meet the

ends of justice and to prevent abuse of process of law.

8. Mr. Satyen Vaidya, learned Senior Counsel duly

assisted by Mr. Bhairav Gupta, Advocate, appearing for the

non-applicant/defendant, while refuting the aforesaid

submissions made on behalf of learned Senior Counsel

appearing for the applicants/plaintiffs, strenuously argued

that since there is no legally constituted suit pending before

this Court, application under Order XXXIX, rules 1 and 2

CPC, filed in a disposed of suit, cannot be considered and

deserves outright rejection. Mr. Vaidya, learned Senior

Counsel, appearing for the non-applicant/defendant, further

contended that the application under Order IX, rule 9 CPC for

restoration, was filed in the month of January, 2018 and at

that time, no application, if any, was filed under Order

XXXIX, rules 1 and 2 CPC, and as such, present application,

which has been filed after about one and half years of filing of

application for restoration of the suit deserves to be

dismissed being devoid of any merit. Lastly, Mr. Vaidya,

learned Senior Counsel argued that otherwise also, perusal of

the averments contained in the application seeking therein

restraint order, reveals no prima facie case, if any, in favour

of the applicants/plaintiffs. He further submitted that it is

admitted case of the applicants/plaintiffs that the non-

applicant/defendant are in exclusive possession of suit

property, on the basis of Will executed by one Smt.

Gurbachan Kaur and as such, balance of convenience cannot

be said to be in favour of the applicants/plaintiffs.

9. It is not in dispute that the application under

adjudication has been filed in OMP No. 14 of 2018 i.e. an

application under Order IX, rule 9 CPC, for restoration of civil

suit which stands dismissed in default vide order dated

10.11.2017 passed by this Court. Bare reading of provisions

contained under Order XXXIX, rules 1 and 2 CPC clearly

suggests that application, if any, for temporary injunction

can be filed in a pending suit and not in a decided suit. In the

case at hand, civil suit having been filed by the

applicants/plaintiffs stands dismissed for non-prosecution.

No doubt, applicants/plaintiffs by way of an application

under Order IX, rule 9 CPC, have prayed for restoration of

civil suit dismissed in default, but till the time civil suit is

restored to its original number, there is no legally constituted

suit pending before this Court and, as such, application filed

under Order XXXIX, rules 1 and 2 CPC, cannot be

entertained, especially when in that application, specific

prayer has been made to restrain the non-

applicant/defendant from selling, transferring and

encumbering the suit property during the pendency of the

suit. Application, if any, under Order XXXIX, rules 1 and 2

CPC can be filed /maintained by the plaintiffs after

restoration of suit and not before that. Though, Mr. K.D.

Sood, learned Senior Counsel has placed reliance upon

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decision rendered by High Court of Allahabad in Basant

Singh (supra), but this Court, having carefully perused the

judgment in its entirety, finds that in the aforesaid judgment,

it has been nowhere held that an application under Order

XXXIX, rules 1 and 2 CPC, can be filed in a decided suit,

rather, it has been categorically ruled in the aforesaid

judgment, that even after dismissal of suit, pending an

application under Order IX, rule 9 CPC, court may grant

interim injunction, in exercise of its inherent powers under

S.151 CPC. This court finds that in the aforesaid judgment,

High Court of Allahabad has specifically dealt with the

expression "all proceedings in any court of civil jurisdiction"

as mentioned under S.141 CPC. It has also been held in the

aforesaid judgment that an application filed for restoration of

second appeal, dismissed as having been abated and the

substitution application falls within the meaning of phrase,

"all proceedings in any court of civil jurisdiction" and as

such, it is open for the court to pass appropriate orders for

injunction in the suit during the pendency of aforesaid

application. But the question still remains that, under what

provision of law, such power can be exercised. In the

aforesaid judgment, it has been held that an application for

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restoration of suit or second appeal dismissed in default or

having been abated, falls within the expression, "all

proceedings" in terms of provisions contained under S.141

CPC, but the very effect of aforesaid findings, if any, would be

that such application would be decided in terms of procedure

laid down in the Code (Code of Civil Procedure). However,

careful perusal of specific provisions laid down under Code of

Civil Procedure for temporary injunction under Order XXXIX,

rules 1 and 2 CPC, nowhere provides for filing an application

for temporary injunction in a decided suit, rather said

application can be filed in a suit which is pending

adjudication. Though, in the aforesaid judgment, it has been

held that injunction, if any, sought during the pendency of an

application for restoration, can be granted, but in exercise of

power under S.151 CPC.

10. Mr. Sood, learned Senior Counsel, further argued

that since the application under adjudication has been filed

under Order XXXIX, rules 1 and 2 read with S.151 CPC, this

Court, while exercising power under S.151 CPC can proceed

to consider prayer made therein. However, this Court is of the

view that before invoking provisions of S.151 CPC, Court is

required to satisfy itself that, whether the order prayed for is

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necessarily required to be passed to meet the ends of justice

and to prevent the abuse of process of law? Needless to say

that the inherent power cannot be exercised so as to nullify

the provisions of the Code. Where a court deals expressly

with a particular matter provisions should normally be

regarded as exhaustive and in that situation, it would not be

proper for the court to invoke provisions contained under

S.151 CPC. Reliance is placed upon National Institute Of

Mental vs C. Parameshwara AIR 2005 242. It has been held in

the aforesaid judgment as under:

"12. In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal , it has been held that inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 CPC, but that

jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be

regarded as exhaustive. In the present case, as stated above, Section 10 CPC has no application and

consequently, it was not open to the High Court to bye- pass Section 10 CPC by invoking Section 151 CPC. ...."

11. Similarly, recourse to inherent power in face or in

conflict with the specific provisions of Statute is not

permissible. Inherent power cannot be invoked to nullify any

statutory provisions of statute. Reliance is placed upon Abdul

Rahim B. Attar, Javed Abdul vs Atul Ambalal Barot And

- 13 -

Rajendra AIR 2003 (Bombay) 120. It has been held in the

aforesaid judgment as under:

.

"....t is well settled that express provisions of law in a

statute would by necessary implication exclude the exercise of inherent powers in regard to that particular Act where specific remedy is provided in accordance with the codified

law. It is also well settled that recourse to inherent powers in the face of or in conflict with the specific provisions of a statute is not permissible. Inherent powers cannot be exercised to nullify the effect of any statutory provision.

The Apex Court in Vareed Jacob v. Sosamma Geevarghese and Ors. has held that "if there is express provision covering a particular topic, then Section 151 of C.P.C. r cannot be applied."

12. If the prayer made on behalf of the

applicants/plaintiffs for exercise of power under S.151 CPC is

examined vis-à-vis factual matrix of the case, this court is

afraid that such power can be exercised in the instant case.

Careful perusal of the suit filed in the year 2013, reveals that

the same was filed for declaration to the effect that the

applicants/plaintiffs are joint owners of the suit property to

the extent of 1/6th share. While seeking aforesaid declaration,

no prayer, if any, was ever made on behalf of the

applicants/plaintiffs seeking decree of permanent prohibitory

injunction. Moreover, alongwith the aforesaid suit, no

separate application, if any, under Order XXXIX, rules 1 and

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2 CPC, ever was filed on behalf of applicants/plaintiffs

seeking therein restraint order against the non-

applicant/defendant(s).

13. Applicants/plaintiffs, while fairly admitting the

factum with regard to possession of the non-

applicant/defendant over the suit property, kept on

prosecuting their suit without making a specific prayer to

issue restraint order during the pendency of the suit, which

was subsequently dismissed in default vide order dated

10.11.2017. Even after dismissal of the suit in default, the

application under the provisions of Order IX, rule 9 CPC, was

filed after an inordinate delay. Since the court was not

convinced with the reasons assigned for recalling the order

dated 10.11.2017, specific issues were framed in the

aforesaid application and time was granted to the parties to

lead evidence. Since the applicants/plaintiffs were unable to

serve their witnesses, evidence on their behalf could not be

concluded, as such, application filed under Order IX, rule 9

CPC, is still pending adjudication. Interestingly, the

applicants/plaintiffs, for some unknown reasons, chose not

to file application, if any, for injunction at the time of filing of

application under Order IX, rule 9 CPC, rather, the same was

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filed approximately one and half years after filing of the

application under Order IX, rule 9 CPC, detailing therein

altogether different reasons, which otherwise were never

brought on record in the original suit. It has been specifically

averred in the application under adjudication that one shop,

which has been ordered to be vacated, is likely to be further

sold/transferred by the non-applicant/defendant during the

pendency of the suit and, in case, non-applicant/defendant(s)

is/are not restrained from selling/transferring or creating

third party interest, great prejudice would be caused to the

applicants/plaintiffs. Averments contained in the application

itself suggest that the non-applicant/defendant being owner

of suit property, instituted eviction proceedings against the

tenants occupying certain portions of the property but, at no

point of time, effort, if any, was ever made on behalf of the

applicants/plaintiffs to get themselves impleaded in the

eviction proceedings on the ground that they are co-owners of

the suit property. It has been nowhere stated in the

application that the factum with regard to pendency of

eviction proceedings initiated at the behest of non-

applicant/defendant in the competent court of law was not in

the knowledge of the applicants/plaintiffs, as such, this

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Court has reasons to presume that the applicants/plaintiffs

were having knowledge of pendency of the eviction

proceedings against a few of the tenants occupying certain

parts of the suit property, but, they purposely withheld

aforesaid facts from this Court at the time of filing the suit. It

is only after passing of eviction orders that the

applicants/plaintiffs suddenly woke up from deep slumber

and filed the application under Order XXXIX, rules 1 and 2

CPC, that too, in a decided suit.

14. Having taken note of the fact that in the main

suit, no prayer for issuance of a decree of

temporary/permanent prohibitory injunction was ever made,

coupled with the fact that no separate application for

temporary injunction was filed under Order XXXIX, rules 1

and 2 CPC, alongwith the suit, this Court finds no reason to

invoke power under S.151 CPC, to pass injunction, especially

when the main suit stands dismissed in default. Otherwise

also, once there is a specific provision under the Code to get

the civil suit restored, inherent power under S.151 CPC,

cannot be invoked to undo the benefits, if any, reaped by one

party on account of negligence of the other party. Otherwise

also, applicants/plaintiffs have not approached this Court,

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with clean hands, as such, prayer made on their behalf for

exercise of power under S.151 CPC, deserves to be rejected,

which otherwise can be exercised sparingly to prevent abuse

of process of court. There is nothing on record, suggestive of

the fact that at any point of time, non-applicant/defendant

abused process of law, rather, civil suit having been filed on

behalf of applicants/plaintiffs was dismissed due to their own

negligence. If the averments contained in original suit are

read in r its entirety, it is the own case of the

applicants/plaintiffs that mutation No. 141, dated 27.7.2005,

has been wrongly attested in favour of the non-

applicant/defendant on the basis of a Will, meaning thereby

that the mutation of suit property was attested in favour of

non-applicant/defendant(s), on the basis of a Will, which

otherwise is not under challenge in the main suit, as is

evident from the specific prayer made therein. Since it is not

in dispute inter se parties that the non-

applicant/defendant(s) is/are in possession of the suit

property on the basis of the Will, validity whereof has not

been laid challenge, no prima facie case otherwise can be said

to be existing in favour of applicants/plaintiffs. Though, in

the case at hand, the applicants/plaintiffs have claimed that

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the balance of convenience lies in their favour but having

taken note of the fact that non-applicant/defendant, after

becoming owner of the property in question on the strength of

Will, initiated eviction proceedings against tenants and got

them successfully evicted, it can be safely concluded that the

balance of convenience lies in favour of the non-

applicant/defendant and not in favour of the

applicants/plaintiffs.

15. r Hon'ble Apex Court in case Mahadeo Savlaram

Shelke v. The Puna Municpal Corpn., J.T. 1995(2) S.C. 504,

relying upon its earlier judgment in Dalpat Kumar v. Prahlad

Singh, (1992) 1 SCC 719 has aptly interpreted the phrases,

"prima facie case", "balance of convenience" and "irreparable

loss". Hon'ble Apex Court has observed in the judgment

(supra) that the phrases "prima facie case", "balance of

convenience" and "irreparable loss" are not rhetoric phrases

for incantation but words of width and elasticity, intended to

meet myriad situations presented by men's ingenuity in given

facts and circumstances and should always be hedged with

sound exercise of judicial discretion to meet the ends of

justice. The court would be circumspect before granting the

injunction and look to the conduct of the party, the probable

- 19 -

injury to either party and whether the plaintiffs could be

adequately compensated, if injunction is refused. The

existence of prima facie right is a condition 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 the 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 the one

that cannot be adequately compensated by way of damages.

The balance of convenience must be in favour of granting

injunction. The court while granting or refusing injunction

should exercise sound judicial discretion to find the amount

of substantial mischief or injury which is likely to be caused

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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 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.

Hon'ble Apex Court has held as under:

"...the phrases "prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity, intended to

meet myriad situations presented by men's ingenuity in

given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice. The court would be circumspect before granting the injunction and look to the conduct of the party, the probable

injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. The existence of prima fade right and infraction of the enjoyment

of him property or the right is a condition 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

- 21 -

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

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 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. The court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim

injunction pending the suit."

16. Apart from aforesaid well established

parameters/ingredients, conduct of the party seeking

injunction is also of utmost important, as has been held by

Hon'ble Apex Court in case M/S Gujarat Bottling Co.Ltd. &

Ors. v. The Coca Cola Co. & Ors., AIR 1995 2372. In case a

party seeking injunction fails to make out any of the three

ingredients, it would not be entitled to injunction.

- 22 -

17. A Coordinate Bench of this Court in Ashok

Kapoor vs. Murtu Devi 2016 (1) Shim. LC 207, had an

occasion to deal with the issue of injunction, wherein it,

having taken note of various judgments rendered by

Constitutional courts, concluded as under:

"47. The discretion of the Court is exercised to grant a temporary injunction only when the following

requirements are made out by the plaintiff:-

(i) existence of a prima facie case as pleaded, r necessitating protection of the plaintiff's rights

by issue of a temporary injunction;

(ii) when the need for protection of the plaintiff's rights is compared with or weighed against the

need for protection of the defendant's right or likely infringement of the defendant's rights, the

balance of convenience tilting in favour of the plaintiff; and

(iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary

injunction is not granted.

In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the Court with clean hands."

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18. Otherwise also, as far as plea with regard to

irreparable loss is concerned, same cannot be accepted at

this stage on account of the facts and circumstances of the

case noted above, rather, this Court is of the view that in the

event of suit being allowed after its restoration,

applicants/plaintiffs can get their appropriate share in the

property by filing appropriate proceedings. There is yet

another aspect of the matter that bare perusal of the

application under adjudication itself suggests that a prayer

has been made to restrain the non-applicant/defendant from

selling, transferring or encumbering the suit property during