Jharkhand High Court
Usha Poddar vs Ramesh Kumar Gutgutia on 29 January, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 177 of 2024
Usha Poddar, widow of Late Raj Kumar Poddar,
aged about 73 years, daughter of Late Bihari Lal
Gutgutia, resident of 27/1, Natraj N.S. Road, No. 2,
Juhu Scheme, P.O. & P.S. Vile Parle (West),
District Mumbai.
..... ... Appellant
Versus
1. Ramesh Kumar Gutgutia
2. Mahesh Kumar Gutgutia
Sl. No. 1 and 2 both sons of Late Behari Lal
Gutgutia, resident of Bhuli Road, P.O. & P.S. Bank
More & District - Dhanbad PIN 826001.
3.Smt. Nirmal Devi Saraf, widow of Late Sajjan
Kumar Saraf, daughter of Late Behari Lal
Gutgutia, resident of Flat No. B-2 and C-2, 2nd
Floor, Ninety Vasant Vihar building, Raja Basant
Roy Road, P.O. & P.S. Sarat Bose Road, District
Kolkata PIN 700029.
4. Manish Gutgutia
5. Kundan Gutgutia
Sl. No. 4 & 5 both are sons of Late Suresh
Kumar Gutgutia, resident of Bhuli Road, P.O. &
P.S. Bank More, District - Dhanbad PIN 826001.
6. Namrata Sarawgi, daughter of Late Suresh
Kumar Gutgutia, wife of Sri Samir Sarawgi,
resident of "Sarawgi Sadan", Dumri Road, P.O. &
P.S. Dumri. District - Giridih. PIN 815301.
..... ... Respondents
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellant : Mr. Shashank Shekhar, Advocate.
For the Resp. Nos. 1, 2 & 4 to 6 : Mr. J.K. Pasari, Advocate.
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05/ 29.01.2025 Heard Mr. Shashank Shekhar, learned counsel appearing for
the appellant and Mr. J.K. Pasari, learned counsel appearing for the
respondent Nos. 1, 2 and 4 to 6.
2. In view of the office note, notice upon respondent No. 3 has
been validly served, however she has chosen not to appear in the
matter.
3. This appeal has been filed under Order-XLIII, Rule-1(r) of
the CPC, challenging the order dated 24.02.2024, passed by the learned
Civil Judge (Sr. Division)-VII, Dhanbad, in M.C.A. No. 254 of 2022
[arising out of Original Suit No. 307 of 2021], whereby the learned
court has been pleased to reject the application filed under Order-
XXXIX, Rules 1 and 2 of the CPC.
4. Mr. Shashak Shekhar, learned counsel appearing for the
appellant submits that the plaintiff-appellant has instituted the Original
Suit No. 307 of 2021 for a decree of declaration that the plaintiff is
entitled 1/5th share in all moveable and immovable properties,
actionable claims, ownership interest in M/s Shree Ramkrishna Mills
Pvt. Ltd and estate of joint Hindu family. He submits that the prayer is
also made for a preliminary decree of partition of Schedule B properties
and declaring plaintiff's 1/5th share in Schedule B as well as other
properties which may come to surface but not included in the plaint. He
further submits that the appellant is happened to be the daughter of late
Bihar Lal Gutgutia, who died in the year 1979 leaving behind three
sons namely Ramesh Kumar Gutgutia, Suresh Kumar Gutgutia and
Mahesh Kumar Gutgutia and two daughters namely Nirmala Saraf and
Usha Poddar, who is the appellant herein. He submits that the wife of
Late Bihar Lal Gutgutia namely Parmeshwari Devi Gutgutia also died
in the year 2013 and her share is the joint family property also devolved
upon the legal heirs and successors including the plaintiff and
defendants. He then submits that in the year 2018-19 and 2019-20,
defendant Nos. 1 and 2 had begun to dispose of the joint family
properties to various persons and misappropriated the sale proceeds. He
submits that till the life time of the mother of the appellant, the
members of the family were united, but after her demise, the co-sharers,
who were the defendants, started selling the joint family property. On
these backgrounds, learned counsel submits that a petition under Order-
XXXIX, Rules 1 and 2 of the CPC was filed before the learned court,
however, the same was rejected by the learned court only on the ground
that plaintiff had no right, title, interest and possession upon the
suit property and the suit property is exclusively belongs to
a private limited company.
5. Learned counsel appearing for the appellant submits that
the defendant No. 2 filed the written statement separately, where in
para-5 it has been admitted that Schedule-B is a property of a Private
Limited Company and also this company has been formed by Late
Bihari Lal Gutgutia, father of the parties, who died in the year 1979. He
further submits that the partition suit is still pending, which has been
admitted and now the joint family property is being sold, in view of the
fact that the balance of convenience is in favour of the appellant, in
spite of that the learned court has rejected the case of the appellant. He
relied in the case of Antaryami Dalabehera Versus Bishnu Charan
Dalbehera, reported in 2002 0 Supreme (Ori) 146, where in para-10, it
has been held as follows:-
"10. In order to give a decision with the
scope of Order 39, Rules 1 and 2, C.P.C.
for interim injunction, law is well settled
that the petitioner should establish that,
there is a prima facie case; that means, the
petitioner need not fulfil his case on merits
at the stage of hearing on an application
for injunction, but it would be sufficient for
him to show that he has a fair question to
raise as to the existence of his right till the
question is riped for trial/disposal of the
case. Then he should prove irreparable
injury. Irreparable injury means, such
injury which cannot be adequately
remedied by damages; and the last
ingredient is, balance of convenience,
which means, comparative mischief for
inconvenience to the parties. The
incon¬venience to the petitioner if
temporary injunction is refused would be
balanced and compared with that of the
opposite party, if it is granted."
6. He further relied in the case of Vijay Prasad Sharma @
Vijay Prasad Singh & An. Versus Amar Prasad Sharma, reported in
2020(1) PLJR 399, where in paras- 5 and 6, it has been held as under:-
"5. Having heard the rival submissions
made on behalf of the parties, the court
below vide impugned order dated
22.12.2018 allowed the application filed
by the plaintiff and directed for
maintenance of status quo. The court has
given its finding that the plaintiff has a
prima facie case and balance of
convenience also lies in his favour. It has
also given its finding that the plaintiff
would suffer irreparable injury if the
prayer for adinterim injunction is
disallowed.
6. It is well settled principle of law that the
relief by way of interlocutory injunction
can be granted to mitigate the risk of
injustice during the period before the
uncertainty could be resolved. The object
of the interlocutory injunction is to protect
the plaintiff against injury by violation of
his right for which he could not be
adequately compensated in damages
recoverable in the action if the uncertainty
were resolved in his favour at the trial.
However, before granting ad-interim
injunction, the court is also required to
determine as to whether the balance of
convenience lies in favour of the plaintiff
as also whether the plaintiff has a prima
facie case."
7. He also relied in the case of Gita Mishra Versus Most.
Adhikari Kunwar & Ors., reported in (1993) 1 BLJR 358, where in
paras-5, 6 and 7, it has been held as under:-
5. From the genealogical table, it is clear
that the parties are co-sharers. The finding
in regard to prima facie case has also been
recorded in favour of the appallant. In the
said view of the legal position, the status of
the respondents would be merely of a
trustee of the property, they prima facie
being co-sharers. A cosharer is entitled to
enjoy the joint properties as well as its
possession and another co-sharer cannot
be allowed to exclude him from the
enjoyment by selling properties in suit to
Lathial or to any one and that would mean
depriving the plaintiff of her share. I find
substance in the contentions of Mr. Rai
and accepted them.
6. At page 638 of Banerjees Tagore Law
Lectures 1906. The Law of Specific Relief
in British India, Second Edition, 1917, it
has been stated as follows : In India,
among Hindus, joint tenant and co-
parceners premodinate over tenants in
common and they clearly have a right to
prevent a member of the family from, say,
cutting trees growing on the family
property, or destroying part of the family
house or selling some of the family
utencils.
In Kanhaiya Tiwary and Anr. V/s. Raj
Kumar Tiwary and Ors. MA No. 91 of
1986 disposed of on 16-3- 1990, following
the said statement I have held that
injunction ought to have been granted if a
co-sharer deprives another co-sharer of
the properties. Equity is one of the most
important consideration in grant of
injunction which is a preventive relief. The
right to enjoy peacefully a property is an
important right attached to any interest
which may be finally awarded in the suit.
On the findings recorded in the impugned
order the plaintiff has a right to continue
in possession Mr. Chaudhary fails to
demonstrate as to how the finding that the
Defendants are not in exclusive possession
is erroneous. No issue in regard to court
fee appears to have been framed.
7. In Kanhaiya Tiwarys case (supra) I
have also held that removal of property by
a co-sharer involves legal injury which
cannot be measured in terms of money.
The balance of convenience lies, thus, also
in favour of the maintenance of the status
quo. It is a fit case in which injunction
ought to have been granted
notwithstanding the rule of lis pendense.
8. He further relied in the case of Harish Ishwarabhai Patel
Versus Jatin Ishwarbhai Patel & Ors., reported in (2023) SCCR 11,
where in paras-14 and 16, it has been held as below:-
"14. It has been stated at the bar that the
suit is at the stage of framing of issues.
Learned counsel for the parties have also
given an assurance that the parties would
co-operate in the early disposal of the suit.
16. Having heard learned counsel for the
parties and having perused the material on
record, we are of the view that the order of
status quo passed by the trial court was
justified in the facts and circumstances of
the case. We are not entering into the
merits of the matter as it may influence the
trial court. We, therefore, allow this
appeal, set aside the impugned order of the
High Court dated 30.06.2022 maintaining
the order of the trial court in order to
advance justice between the parties."
9. Lastly he relied in the case of Kumar Bimal Prasad Singh
& Ors. Versus Hare Ram Sigh & Ors., reported in 2020(2) PLJR 899,
where in paras-4 and 16, it has been held as under:-
"4. Plaintiffs in their petition filed under
Order 39 Rule 1 and 2 stated that
defendants are negotiating with the local
persons to alienate the suit land, with
intent to cause loss and harm to the
plaintiffs and are also trying to dispossess
the plaintiffs from the suit land whereas
plaintiffs are in peaceful possession over
the suit land and defendants have never
came in possession over the suit land on
the basis of above sale deeds. Plaintiffs
have strong prima facie case and balance
of convenience also lies in their favour and
they would suffer irreparable loss if
defendants succeeded in transferring the
suit property creating third party right.
16. From the facts pleaded, it appears that
plaintiffs have a good prima facie case to
be adjudicated by the trial court. It is well
settled proposition of law that if a lis has
been admitted for adjudication then it
becomes the duty of the court to preserve
the subject matter of the litigation by an
appropriate order so that same is available
at the time of final adjudication and decree
does not become a barren one.
10. Relying on the above judgments, learned counsel appearing
for the appellant submits that if the suit property is being sold, the
prima facie case is in favour of the appellant and in the balance of
convenience, the learned court has erred in passing the said order, in
view of that the said order may kindly be set aside.
11. Mr. Pasari, learned counsel appearing for the respondent
Nos. 1, 2 and 4 to 6 vehemently opposed the prayer and submits that
the Schedule-B property is a property of the company namely M/s Ram
Krishna Mills Private Limited, which is not a joint family property,
therefore that cannot be partitioned and that was acquired by the said
company, as such, the learned court has rightly passed the said order
and to buttress his argument, he refers to para-19 of the written
statement filed by the defendants except of defendant No. 2. He further
draws the attention of the court to the prayer made in the plaint and
submits that the prayer made in the plaint itself is vague, in view of that
the partition suit is not maintainable. On these grounds, he submits that
the learned court has rightly passed the said order.
12. Mr. Pasari, relied in the case of Wander Ltd. & Anr. Versus
Antox India P. Ltd., reported in MANU/SC/0595/1990, where in para-
8, it has been held as under:-
" 8. On a consideration of the matter, we
are afraid, the Appellate Bench fell into
error on own important propositions. The
first is a misdirection in regard to the very
scope and nature of the appeals before it
and the limitations on the powers of the
Appellate Court to substitute its own
discretion in an appeal preferred against a
discretionary order. The second pertains to
the infirmities in the ratiocinations as to
the quality of Antox's alleged user of the
Trade-Mark on which the passing-off
action is founded. We shall deal with these
two separately."
13. He further relied in the case of Kashi Math Samsthan &
Anr. Versus Srimad Sudhindra Thirtha Swamy & Anr., reported in
AIR 2010 SC 296, where in para-13, it has been held as follows:-
"13. It is well settled that in order to
obtain an order of injunction, the party
who seeks for grant of such injunction has
to prove that he has made out a prima
facie case to go for trial, the balance of
convenience is also in his favour and he
will suffer irreparable loss and injury if
injunction is not granted. But it is equally
well settled that when a party fails to prove
prima facie case to go for trial, question of
considering the balance of convenience or
irreparable loss and injury to the party
concerned would not be material at all,
that is to say, if that party fails to prove
prima facie case to go for trial, it is not
open to the Court to grant injunction in his
favour even if, he has made out a case of
balance of convenience being in his favour
and would suffer irreparable loss and
injury if no injunction order is granted.
Therefore, keeping this principle in mind,
let us now see, whether the appellant has
been able to prove prima facie case to get
an order of injunction during the pendency
of the two appeals in the High Court.
In para 21 of the Judgment of the trial
Court, it is found:
".......the words `certain and `some' quoted
above and `when we are still in a position
to carry on with the traditional duties',
prima facie show that the 1st respondent
has not surrendered all his rights,
privilege and duties and that the 2nd
petitioner has not been made as full
fledged Mathadhipathi. As per the custom
prevailing since continuous, vatu initiated
into Sanyasa and named as successor, will
become Mathadhipathi after the
Mathadhipathi passes away."
From the aforesaid finding of the trial
had not abrogated all his powers as
Mathadhipathi in favour of the appellant
no.2 and he was only entrusted with
certain powers. In para 22 of the
Judgment of the trial Court, it was
observed as follows :-
"The following circumstances also go to
support the version of the 1st respondent.
The 2nd petitioner himself has addressed a
letter dated 4/11/99 reads as follows:
`In view of the recent events, we have
kindly decided not to involve in the matters
concerning the authority of Shri Samshtan
(Adhikartha Vishayas) as well as Dharmic
activities (Dharmic Vishayas) of the samaj.
Therefore with pranamas, again and again
we pray and request to relive us as early
as possible.' This prima facie shows that
the 2nd petitioner has been still
recognizing the 1st Mathadhipathi, and
therefore requested him to relieve himself
from "certain activities."
A careful reading of the aforesaid
findings/observations made in para 22 of
the judgment of the trial Court would show
that the letter dated 4th of November, 1999
clearly enumerates the fact that the
appellant No. 2 had wanted to be relieved
from certain activities of the Math and he
had in fact sought permission from the
respondent no 1 in this regard. Therefore,
in our view, it was rightly held by the trial
Court in the final Judgment that the
appellant No. 2 continued to consider the
respondent No. 1 as the Mathadhipathi of
the Math even after the alleged
proclamation of 1994.
The trial court again in para 24 had
observed:
14. Relying on the above judgments, he submits that the
balance of convenience prima facie case is not in favour of the
appellant, in view of that the learned court has rightly passed the said
order. He submits that in light of Order-XXXIX, Rules 1 and 2 of the
CPC, the prima facie case, balance of convenience and irreparable loss
and injury are not made out, in view of that the learned court has rightly
passed the said order.
15. It is an admitted position that the appellant herein is the
plaintiff, who has instituted the suit of partition, who happened to be
one of the daughter of late Bihari Lal Gutgutia. In light of amendment
made in Hindu Succession Act, in sub-section(5) of Section (6), the
purpose of partition means any partition made by execution of a deed of
partition duly registered under the Registration Act, 1908 (16 of 1908)
or partition effected by a decree of a court. The said suit is already
admitted and it is still pending. The plaint is annexed with the memo of
appeal, wherein Schedule-C is also mentioned and in item No. I of the
said schedule, the portion of the lands transferred in favour of different
persons have been mentioned and in Item No. II, the names of third
parties / strangers have been mentioned and also the mutation case
numbers, plot numbers and sale deed numbers all have been disclosed,
which clearly suggests that certain lands of the property in question
have already been sold to other persons and the main suit is still
pending.
16. Defendant No. 2 has filed a separate written statement,
where in para-5, it has been admitted that the Schedule-B property is a
property of a private limited company and this company was also
formed by Late Bihar Lal Gutgutia, father of the parties, who died in
the year 1979. It is further stated that properties have already been
partitioned and the appellant has also taken share of hers, however,
nothing has been available on record to suggest that the said property in
question has already been partitioned and in view of that Sub-Section
(5) of Section (6) of the Hindu Succession Act is attracted.
17. In view of the above, the prime facie case in favour of the
appellant is made out and it is the duty of the court to preserve the
subject matter of litigation by an appropriate order so that at the final
stage of a case, the entire property cannot be exhausted and this is the
ratio and this is the position, on which, reliance has been placed by the
learned counsel appearing for the appellant.
18. So far as the judgment relied by Mr. Pasari, learned counsel
is concerned, the facts of those cases are otherwise. In the case of
Wander Ltd. (Supra), that case is arising out of a trade mark case and
the discretion of the learned single judge was declined and the Hon'ble
Supreme Court in that case has found that unless it is proved that it has
been exercised arbitrarily or capriciously or perversely then only the
appellate court can pass any order.
19. In the case in hand, the fact is otherwise what has been
discussed hereinabove. The partition suit is still pending and the
property has been sold to different persons, which are also disclosed in
the Schedule-C and rest are apprehended to be sold out as such, that
case is not helping the opposite parties.
20. The court is in agreement with the ratio laid down in the
case of Kashi Math Samsthan & Anr. (Supra), as relied by the learned
counsel appearing for the opposite parties, where in para-13, the
principles have been laid down and if the party fails to prove prima
facie case to go for trial, it is not open to the court to grant injunction
that has been held in that case.
21. In the case in hand, what has been discussed hereinabove,
the said suit is already admitted and Schedule-C property further
suggests that land has already been transferred to different persons and
it has been alleged that further the lands are being transferred. As such,
the said judgment, relied by Mr. Pasari is not helping the opposite
parties.
22. In view of the above facts, reasons and analysis, the
impugned order dated 24.02.2024, passed by the learned Civil Judge
(Sr. Division)-VII, Dhanbad, in M.C.A. No. 254 of 2022 [arising out of
Original Suit No. 307 of 2021], whereby the learned court has been
pleased to reject the application filed under Order-XXXIX, Rules 1 and
2 of the CPC, is hereby, set aside.
23. This appeal is allowed as well as the petition filed for
interim injunction, this court restrained the opposite parties, who are
defendants in the suit from transferring the suit property to any person.
24. The status quo till the disposal of the title suit shall be
maintained by the respective parties.
25. With the above observation this petition is allowed and
disposed of.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
[A.F.R.]
