Smt. Nirmala vs Smt. Gita Patel
2022 Latest Caselaw 13751 MP

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                                                             M.P. No. 4868/2022


         IN THE HIGH COURT OF MADHYA PRADESH
                       AT INDORE
                                BEFORE

                 HON'BLE SHRI JUSTICE VIVEK RUSIA

                   ON THE 18th OF OCTOBER, 2022

                 MISC. PETITION No. 4868 of 2022

  BETWEEN:-
  SMT. NIRMALA W/O ASHOK KUMAR JAIN, AGED ABOUT 56
  YEARS, OCCUPATION: HOUSEWIFE LAXMIBAI MARG, JHABUA
  DISTRICT JHABUA (MADHYA PRADESH)
                                                          .....PETITIONER
  (SHRI VINAY GANDHI, LEARNED COUNSEL FOR THE PETITIONER.)

  AND
   SMT. GITA PATEL W/O DECD. DEVILAL PATEL, AGED ABOUT 51
1. YEARS, OCCUPATION: HOUSEWIFE 15, SARDAR PATEL MARG,
   JHAUBA DISTRICT JHABUA (MADHYA PRADESH)
   HARSHDEEP PATEL S/O DECD. DEVILAL PATEL OCCUPATION:
2. BUSINESS 15, SARDAR PATEL MARG, JHAUBA DISTRICT JHABUA
   (MADHYA PRADESH)
                                                        .....RESPONDENTS
  (NONE FOR THE RESPONDENTS.)
This petition coming on for hearing this day, the court passed the
following:
                                ORDER

The petitioner/plaintiff has filed this petition against the order dated 9.9.2022 whereby the Misc. Appeal filed under Order 43 Rule 1 of the C.P.C..

The facts of the case, in short, are as under :

The petitioner/plaintiff has filed the suit for declaration and permanent injunction against respondents/defendants along with an application under Order 39 Rule 1 & 2, C.P.C. According to the

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M.P. No. 4868/2022

petitioner, she purchased the piece of land bearing Survey No. 49/5/12 area 0.014 Hect. (30 x 50 Sq.ft.) vide registered sale-deed dated 28.3.2011 from Smt. Rita W/o. Gautam. The four boundaries of the land are mentioned in the sale-deed. Thereafter, her name had been mutated in the review record as residential purpose vide order dated 30.7.2013. Thereafter, her name had been mutated in the record of Nagar Palika Parishad, Jhabua on 21.2.2018 as Plot No. 545/2. According to the plaintiff, defendants No.1 and 2 have started construction on the aforesaid land illegally which gave her cause of action for filing the suit.

The respondents/defendants have filed the reply to the application under Order 39 Rule 1 & 2 of C.P.C. by submitting that they are raising the construction on land belonging to them i.e. Survey No.49/5/19 area 0.0070 Hect. which they purchased vide registered sale-deed dated 14.8.2020. The four boundaries are mentioned in the sale-deed. At the time of the mutation of the name of the defendants, the plaintiff submitted an objection before the Tehsildar which has been rejected. Thereafter, the appeal was filed before the Sub Divisional Officer and that too was dismissed after spot inspection. The aforesaid fact has been suppressed by the plaintiff in the present civil suit. On the basis of aforesaid pleadings and documentary evidence, learned Civil Judge, Senior Division, Jhabua has dismissed the application filed under Order 39 Rule 1 & 2 of C.P.C. vide order dated 30.8.2022.

Being aggrieved by the aforesaid order, the plaintiff preferred Misc. Appeal under Order 43 Rule 1 of C.P.C. and the learned District Judge, Jhabua vide order dated 9.9.2022 has partly allowed the appeal by directing the District Collector to depute any Revenue Officer as

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M.P. No. 4868/2022

Commissioner to carry out spot inspection of Survey Nos. 49/5/12 and 49/5/19 and submit the report. The learned District Judge also remanded the matter back to the learned Civil Judge to decide the application under Order 39 Rule 1 & 2 of C.P.C. afresh after obtaining the report within 3 months. Meanwhile, the learned District Judge, has permitted the defendants to continue with the construction by giving an undertaking that in the event of the suit being allowed, they shall remove the construction at their own cost. In compliance with the said order, the defendants have given an undertaking. Thereafter, the learned Civil Judge disposed of the application under Order 39 Rule 1 & 2 of C.P.C.

The petitioner has filed the present petition challenging the impugned order dated 9.9.2022 only to challenge the permission to the defendants to continue with the construction by giving an undertaking.

Shri Vinay Gandhi, learned counsel for the petitioner/plaintiff submits that once the appellate Court has remanded the matter back to the trial Court to decide the application afresh, then the defendants should not have been permitted to continue with the construction. The defendants have completed the ground floor and now they are raising the construction of the first floor on a plot/land belonging to the plaintiff. In support of his contention, he has placed reliance on the judgment passed by the apex Court in the case of Maharwal Khewaji Trust (Regd.) V/s. Baldev Dass : AIR 2005 SC 104.

The petitioner is challenging the order dated 9.9.2022. This petition was filed on 17.10.2022 i.e. after more than a month. At the time of filing of the present petition, the ground floor had already been constructed by the defendants and now further construction is being

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M.P. No. 4868/2022

raised on the first floor and above which is seen in the photographs filed with the writ petition . The defendants are raising the construction at their own cost with an undertaking that if the petitioner/plaintiff succeeds in the suit, they will remove the construction raised by them. The final disposal of the civil suit will take time. Thereafter, the remedy of appeal, second appeal and SLP would be available to the parties. By that time, the cost of construction would be raised many times. The plaintiff has not given any undertaking that she will compensate the defendants in case of dismissal of the suit. Therefore, the learned District Judge has rightly permitted the defendants to continue with the construction with an undertaking. The apex Court in the case of Maharwal Khewaji (supra) has held that unless and until the case of irreparable loss or damage is made out by a party to the suit, the Court should not permit the nature of the property to be changed which also includes alienation or transfer of the property. The irreparable loss of the defendant is also liable to be considered in the suit while granting a temporary injunction.

That vide order dated 1.10.2022 the application for a temporary injunction has been finally disposed of against which the petitioner is having remedy to file misc. appeal on merit . Accordingly, this petition fails and is hereby dismissed.

( VIVEK RUSIA ) JUDGE Alok/-

Digitally signed by ALOK GARGAV Date: 2022.10.19 16:48:59 +05'30'