Madhya Pradesh High Court

Jaisingh vs The State Of Madhya Pradesh on 22 March, 2021

Author: Sushrut Arvind Dharmadhikari

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         THE HIGH COURT OF MADHYA PRADESH,
                    BENCH AT GWALIOR
                         MP-643-2021
                  (Jai Singh Vs. State of M.P.)


Gwalior, Dated : 22/03/2021

      Shri N.K. Gupta, learned senior counsel with Shri Sanjay

Sharma, learned counsel for the petitioner.

      Shri Sanjay Kumar Sharma learned Government Advocate for

the respondent/State.

Heard on the question of admission.

In this petition under Article 227 of the Constitution of India,

the petitioner has challenged the order dated 21/01/2020 (Annexure

P/1) passed by 7th Additional District Judge, District- Guna (M.P.),

whereby application filed by the petitioner/plaintiff under Order 39

Rule 1 & 2 of CPC has been rejected.

The brief facts leading to filing of this case are that

petitioner/plaintiff had filed a suit for declaration and permanent

injunction in respect of land in question bearing Survey No.435 area

60420 hectare with the pleadings that land in question is in the

occupation of the petitioner since long and earlier his predecessors

was in possession of the land since 1968. The petitioner is

cultivating the land and he has perfected his title based on adverse

possession. On 01/11/2014, when the petitioner was cultivating the

land, then Patwari of the area came on the spot and asked the

THE HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR MP-643-2021 (Jai Singh Vs. State of M.P.)

petitioner to hand over the possession or else the same shall be

removed by using force. Later on, notice was sent by the petitioner

under Section 80 of Code of Civil Procedure and thereafter, suit for

declaration and permanent injunction has been filed alongwith

application under Order 39 Rule 1 & 2 of CPC. The trial Court,

during pendency of the suit, had granted the injunction in favour of

the petitioner. Ultimately, the suit came to be dismissed vide

judgment and decree dated 19/01/2016. Being aggrieved by the

judgment and decree dated 19/01/2016, the petitioner filed a First

Appeal No.12/2019 before 7th Additional District Judge, District-

Guna (M.P.) alongwith an application under Order 39 Rule 1 & 2 of

CPC seeking temporary injunction. Thereafter, reply was filed by

the defendant/respondent to the application under Order 39 Rule 1

& 2 of CPC. The Appellate Court rejected the application without

considering the fact that earlier proceedings under Section 248 of

M.P.L.R.C., penalty was deposited by the petitioner and petitioner is

in possession of the land in question even today.

Learned counsel for the petitioner contended that the

Appellate Court erred in rejecting the application under Order 39

Rule 1& 2 of CPC. The Appellate Court in its judgment dated

THE HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR MP-643-2021 (Jai Singh Vs. State of M.P.)

21/01/2020 came to the conclusion that the petitioner is not able to

prove that he is in possession of the disputed land.

Heard learned counsel for the parties.

In the case of Noor Mohammad and Anr. vs. State of M.P.

& Ors. reported in 2019 (2) MPLJ 61, this Court has observed

thus:-

7. In the case of Wander Ltd. and another vs. Antox India P. Ltd., 1990 (Supp.) SCC 727 the Apex Court has considered the scope of interference in appeal in the matter of temporary injunction. The relevant paragraph of the aforesaid judgment is reproduced as under : "The Appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below solely on the ground that if it had considered the matter

THE HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR MP-643-2021 (Jai Singh Vs. State of M.P.)

at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the Appellate Court would have taken a different view may not justify interference with the trial Court's exercise of discretion. (Para-14)".

8. In the case of West Bengal Housing Board vs. Pramila Sanfui and ors., reported in 2016(1) SCC 743 the Apex Court has held that no injunction can be granted against the non- payment. In the recent judgment passed in the case of Authorized Officer State Bank of Travancore and another vs. Mathew K. C., 2018(4) M.P.L.J. (S.C.) 162 = (2018) 3 SCC 85. The Apex Court has deprecated passing of the interim order in the cases of recovery by secured creditor under the Provisions of Act, 2002.

It is seen that petitioner/plaintiff has not been able to show

any material or document to prima facie believe that he is in

possession of the disputed property. It is well settled that conduct of

the parties is also a relevant consideration for grant of injunction, as

this Court in Rajesh Mishra Vs. Rajesh Vilas Singh Kushwaha

(2015 (2) MPLJ 698) has observed thus:-

THE HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR MP-643-2021 (Jai Singh Vs. State of M.P.)

"13. The Apex Court in 2010 (2) JLJ 210, Narendra Kante vs. Anuradha Kante and others opined that, while considering an application for grant of injunction, the Court has not only to take into consideration the basic elements regarding existence of a prima facie case, balance of convenience and irreparable injury, it has also to take into consideration the conduct of the parties since grant of injunction is an equitable relief.

Thus, while exercising discretion for grant of interim

injunction the following three principles are applied:-