Madhya Pradesh High Court

Bhagwantibai vs Rajendra Kumar on 8 March, 2022

Author: Anil Verma

 IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
                                BEFORE
                 HON'BLE SHRI JUSTICE ANIL VERMA

                      ON THE 8th OF MARCH, 2022

                 MISC. PETITION No. 2993 of 2021

     Between:-
     BHAGWANTIBAI
     W/O LATE SHREE NATHULAL SAHU
1.
     OCCUPATION: UNEMPLOYED
     36/1 KACHI MOHALLA (MADHYA PRADESH)
     OMPRAKASH S/O LATE SHREE NATHULAL SAHU
     OCCUPATION: UNEMPLOYED
2.
     36/1 KACHI MOHALLA INDORE
     (MADHYA PRADESH)
     SURESH S/O LATE SHREE NATHULAL SAHU
     OCCUPATION: UNEMPLOYED
3.
     JABRAN COLONY, OPP. BRIDGE MAHAKAL
     PAN BHANDAR, INDORE (MADHYA PRADESH)
     KISHORE S/O LATE SHREE NATHULAL SAHU
     OCCUPATION: UNEMPLOYED
4.
     JANTA QUARTER, NANDANAGAR INDORE
     (MADHYA PRADESH)
     MOHAN S/O LATE SHREE NATHULAL SAHU
     OCCUPATION: UNEMPLOYED
5.
     RUPRAM NAGAR NEAR BRIDGE SAI CYCLE SERVICE
     INDORE (MADHYA PRADESH)
     SANTOSH S/O LATE SHREE NATHULAL SAHU
     OCCUPATION: UNEMPLOYED JANTA QUARTER,
6.
     NANDANAGAR INDORE (MADHYA PRADESH)

                                                      .....PETITIONER

     (BY SHRI A.K. NAHAR, ADVOCATE )

     AND

     RAJENDRA KUMAR S/O LATE SHREE NATHULAL SAHU , AGED
     ABOUT 52 YEARS, OCCUPATION: BUSINESS 36/1, KACHI
     MOHALLA (MADHYA PRADESH)

                                                   .....RESPONDENTS

     (NONE FOR THE RESPONDENT)

        This petition coming on for order this day, the court passed the

following:
                                 ORDER

Heard learned counsel for the petitioner at motion stage. The petitioners / defendants have filed present petition under Article 227 of the Constitution of India agaisnt the impugned order dated 18/08/2021 passed by the 4th Additional District Judge, Indore in Miscellaneous Civil Appeal no. 50/2021, whereby the said appeal under under Order 43 Rule 1 of CPC filed by the respondent/plaintiff has been allowed and the temporary injunction has been granted in favour of the respondent / plaintiff.

2. Facts of the case in brief are that the respondent/plaintiff filed a civil suit seeking declaratory relief praying that house no. 36/1, Kachhi Mohalla, Indore ( in short " the suit property") is an anscestral property of the plaintiff and the defendants. it should be declared that respondent/plaintiff is using the shop situated in the suited property since the lifetime of his father and is the only source of earning of the family. It is also prayed that petitioner/defendants in suit may be injected from disturbing or alienating the suited property. Respondent/plaintiff has also filed an application under Order 39 Rule 1 and 2 of CPC, seeking temporary injunction on petitioners/ defendants. After hearing both the parties, 5th Civil Judge, Class-II, Indore vide order dated 06/07/2021, dismissed the application, therefore, the respondent/plaintiff moved an appeal agaisnt the said order before the 4th ADJ, Indore, wherein vide order order dated 18/08/2021, directed temporary injunction on sale and alienation of suited house in favour of the respondent/plantiff, Hence, present petition has been preferred before this Court by the petitioners/defendants.

3. Learned counsel for the petitioners contended that the impugned order is prima facie illegal, arbitrary and perverse and suffers from jurisdictional error apparent on the fact of record. Learned Appellate Court has grossly committed error in law and facts while passing the impugned order. By reversing the order passed by the Appellate Court in contravention of settled legal principle that discretion once exercised should not be interfered. Prima-facie case, balance of convenience and irreparable loss, all these ingredients are in favour of the petitioners/defendants and the plaintiff has no right over the suit property. Under these circumstances, learned counsel prays for setting aside the impugned order.

3. Nobody appeared on behalf of the respondent/plaintiff despite service of notice.

4. Heard learned counsel for the petitioner at length and perused the relevant documents available on record.

5. On perusal of the documents filed by the petitioners, it appears that the plaintiff and defendant nos. 2 to 6 are real brothers and sons of Late Nathulal Shahu, who executed a WILL in the year 2011. According to the WILL, Late Nathulal Shahu partitioned his entire immovable property and devided it into all his sons, which he had purchased from Shahu Nagar Grih Nirman Sahakari Sanstha, Indore through registered sale deed. The WILL executed by Late Nathulal Shahu clearly demonstrate that the family partition is already recorded, wherein Late Nathulal Shahu has given self-acquired property to the respondent clarying that the respondent will not have any reight in the suit property. The respondent Rajendra Kumar Shahu did not file any relevant document to prove his contention that he is the owner of the Annapurna Aata Chakki and he is running the Aata Chakki since last 30 years. He did not produce any certificate of shop and establishment department, electricity bill or receipt of tax property regarding the suit property. In absence of the above material evidence, prima-facie case is not found in favour of the respondent/plaintiff.

6. In absence of prima-facie case, if the temporary injunction is granted in favour of the respondent/plaintiff, then the petitioners/defendants will suffer such a irreparable loss, which cannot be compensated in terms of money, therefore, prima-facie case, balance of convenience and irreparable loss, all these ingredents are not found in favour of the respondent/plaintiff, therefore, the trial Court has rightly rejected the application filed under Order 39 Rule 1 and 2 of CPC filed by the respondent/plaintiff.

7. The Apex court in the matter of Wander Ltd and another Vs. Antox India P. Ltd reported in 1990(supp) SCC 727 has held as under:-

" T4. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, 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 if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter 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. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph :

... These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case."

8. The Apex court in the matter of Skyline Education Institute (Pvt.) Ltd Vs. S.L. Vaswani and another reported in AIR 2010 SC 3221 while deciding the application of temporary injunction by the appellate court has held as under:-

"16. The ratio of the above noted judgments is that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity ."

9. In light of the above, it appears that the First Appellate Court did not consider the above legal aspect of the matter. Prima- facie, respondent/plaintiff is not sole owner of the suit property and his possession of the suit property is not prima-facie established. He did not produce any relevant document to establish that Annapurna Aata Chakki was being run by him since last 30 years on the suit property, therefore, in view of the above, respondent / plaintiff dies not deserve for any temporary injunction against the petitioner, but first Appellate Court has committed error in allowing application filed by the respondent/plaintiff vide impugned order dated 18/08/2021. Thus, the impugned order is not legally sustainable and as such, the same requires to be interfered at the hands of this Court.