Madhya Pradesh High Court
Smt. Gomti Devi vs The State Of Madhya Pradesh on 14 December, 2021
Author: Sanjay Dwivedi
1 MP-4415-2021
The High Court Of Madhya Pradesh
MP No. 4415 of 2021
(SMT. GOMTI DEVI Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Jabalpur, Dated : 14-12-2021
Shri Ashok Kumar Jain, learned counsel for the petitioner.
Shri Devendra Gangrade, learned P.L. for respondent-State.
Heard on the question of admission.
This petition is filed under Article 227 of Constitution of India
questioning the validity of the order dated 26.11.2021 (Ann.P.7), passed in
MJC No.27/2019, rejecting the application filed under Section 151 of CPC.
As per the facts of the case, the plaintiff/petitioner has filed a suit for
declaration and permanent injunction in respect of the land situated over
Khasra No.188 measuring 0.243 hectare out of 2.375 hectare but the said suit
was dismissed by the trial Court vide judgment dated 20.12.2017. Against the
said judgment an appeal was preferred by the petitioner but that appeal was
barred by time. In a said appeal an application filed under Section 151 of
C.P.C. asking that injunction may be granted against the respondent-State or
to its employee that they should not dispossess the appellant by initiating the
proceedings of some other cases and also sought stay of order dated
18.10.2021 passed by the Tehsildar under the provision of Section 248 of
Madhya Pradesh Land Revenue Code, 1959 (in short, the Code 1959).
Appellate Court has rejected the stay application by the impugned
order mentioning therein that the appeal is barred by time and delay has not
been condoned so far. Therefore, under the provision of Order 41 Rule 3-A
of C.P.C., unless the application for condonation of delay is not decided, the
Court shall not make an order for the stay of execution of decree, against
which appeal is proposed.
Shri Ashok Kumar Jain, learned counsel for the petitioner assailing the
order of the appellate Court mainly on the ground that appellate Court cannot
reject the application on the ground that application under Section 151 of
CPC is not maintainable, as per the provision of Order 41 Rule 3-A of
Signature Not Verified
SAN
Digitally signed by KRISHAN KUMAR
CHOUKSEY
Date: 2021.12.17 10:38:01 IST
2 MP-4415-2021
C.P.C. He further submits that the petitioner has not sought any stay of the
impugned judgment and decree but asked the injunction against the
respondents, so that they may not dispossess the petitioner till pendency of
appeal. He further submits that if the delay is not condoned, does not mean
that appellate authority is powerless to entertain the application under Section
151 of CPC or to grant any injunction in favour of the appellant.
Shri Jubin Prasan, learned counsel for the respondent-State submits
that by moving an application under Section 151 of CPC the petitioner is
challenging the order passed by the Revenue Authority under a proceeding of
Section 248 of the Code 1959. As per the order passed by the Revenue
Authority, it is clear that the petitioner was encroacher, and therefore, in a
proceeding under Section 248 of the Code of 1959, in which he has
participated an order has been passed by the Revenue Authority holding him
an encroacher and directed that encroachment should be removed. He
submits that the order passed by the Revenue Authority under the provision
of Section 248 of the Code 1959 is a separate proceeding for which appeal is
provided in the Code of 1959 and the petitioner can challenge the same by
filing an appeal. Thus, the order passed by the appellate Court though not
mentioning the specific provision but otherwise justifying and does not call
for any interference at this stage.
I have considered the submission made by the parties and perused the
record, I am not convinced with the submission made by the learned counsel
for the petitioner, as such I do not find any force in his submission. Though,
the appellate Court has rejected the application filed under Section 151 of
CPC on the ground that unless delay is condoned, the appeal is not treated to
be an appeal in the eye of law. The appellate Court has considered the
restriction imposed under the relative provision not granting any stay in
respect of impugned judgment and decree, which have given rise to the
appeal. Even otherwise when basic interim protection cannot be granted by
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the appellate Court and restriction has been imposed by the specific provision
SAN
Digitally signed by KRISHAN KUMAR
CHOUKSEY
Date: 2021.12.17 10:38:01 IST
3 MP-4415-2021
i.e. Order 41 Rule 3-A of CPC, appellate Court cannot grant any other type
of injunction as is being claimed by the petitioner by moving an application
under Section 151 of CPC specifically stay in respect of order passed by the
Revenue Authority under the specific provision of the Code 1959 and the fact
that said order is appealable as the per provision mentioned in the Code
1959. When the suit filed by the petitioner asking declaration of title in
respect of land in question has been dismissed, the Revenue Authority in a
proceeding under Section 248 of the Code 1959 found the petitioner is an
encroacher then the appellate Court has rightly rejected the application for
injunction though mentioning the provision of Order 41 Rule 3-A of CPC but
it does not mean that the court has committed any illegality exceeding
jurisdiction saying that said application is not maintainable.
In my opinion, though the order is not specifically worded but the
appellate Court was right in rejecting the application refusing to grant any
injunction or stay in favour of the petitioner that too when the injunction can
be claimed by the petitioner by challenging the order passed by the Revenue
Authority preferring an appeal under the provision of Code 1959 and
appellate authority in the said provision is also competent to grant interim
protection, if any is claimed by the appellant.
Thus, in my opinion the order passed by the Court below which is
impugned in this petition does not suffer from any infirmity and appellate
Court has also not exceeded its jurisdiction, therefore, in my opinion this
petition is without any substance and is hereby dismissed.
(SANJAY DWIVEDI)
JUDGE
kkc
Signature Not Verified
SAN
Digitally signed by KRISHAN KUMAR
CHOUKSEY
Date: 2021.12.17 10:38:01 IST
