Jageshwari Soni vs Rupesh Kumar Soni
2023 Latest Caselaw 555 MP

                                                               1
                            IN     THE       HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                     BEFORE
                                  HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                                                ON THE 10 th OF JANUARY, 2023
                                               MISC. PETITION No. 3434 of 2022

                           BETWEEN:-
                           JAGESHWARI SONI S/O SHRI MURLIDHAR SONI, AGED
                           ABOUT 37 YEARS, OCCUPATION: BUSINESSMAN R/O
                           HARDIKAR       WALI  GHATIYA BARIYAGHAT WARD
                           T E H S I L AND DISTRICT SAGAR M.P. (MADHYA
                           PRADESH)

                                                                                             .....PETITIONER
                           (BY SHRI NEERAJ PATHAK-ADVOCATE )

                           AND
                           RUPESH KUMAR SONI S/O SHRI RAMESH KUMAR
                           SONI, AGED ABOUT 40 YEARS, R/O HARDIKAR WALI
                           GHATIYA BARIYAGHAT WARD TEHSIL AND DISTRICT
                           SAGAR M.P. (MADHYA PRADESH)

                                                                                            .....RESPONDENT


                                 This petition coming on for admission this day, th e court passed the
                           following:
                                                                ORDER

This petition, under Article 227 of the Constitution of India, has been filed against the order dated 26.07.2022 passed by the second District Judge, Sagar in M.A.No.77-A/2021, by which the appeal filed by the respondent under Order 43 Rule 1(r) of CPC has been partially allowed and the petitioner has been directed to furnish a security of Rs.2,00,000/- to compensate the defendant, in case the plaintiff does not succeed in the suit.

The facts necessary for disposal of the present petition, in short, are that Signature Not Verified Signed by: TRUPTI GUNJAL Signing time: 12-01-2023 12:22:29

the petitioner has filed a suit for specific performance of contract. The petitioner filed an application under Order 29 Rules 1 and 2 of CPC for directing the respondent not to create any third party right during the pendency of the suit. The said application was allowed by the trial court by the order dated 12.11.2021 passed in Civil Suit No.291-A/2021.

Being aggrieved by the order passed by the trial court, the respondent preferred an appeal. While deciding the appeal, the appellate Court by the impugned order has directed the petitioner to furnish a security of Rs.2,00,000/- for payment of compensation to the respondent in case if he could not succeed in the suit.

Challenging the orders passed by the Courts below, it is submitted by the counsel for the petitioner that while deciding the appeal filed by the respondent, the first appellate Court has considered various aspects, which were not warranted. However, he fairly conceded that the appellate Court was well within its jurisdiction to impose the condition of furnishing security.

Heard the learned counsel for the petitioner. By inviting attention of this Court to paragraph 8 of the judgment, it is submitted that the appellate Court has given certain findings with regard to the agreement of sale. However, the submissions made by the counsel for the petitioner is incorrect. In paragraph 8, the appellate Court has merely reproduced the contentions of the counsel for the respondent. Furthermore, in paragraph 11 of the impugned order, the appellate Court has specifically clarified that the question of genuineness of the agreement of sale cannot decided at this stage. Thus, it is clear that the appellate Court has not given any finding on merits of the case and has decided the appeal merely on the ground

Signature Not Verified Signed by: TRUPTI GUNJAL Signing time: 12-01-2023 12:22:29

as to whether any direction for furnishing security can be given or not.

Since the appellate Court has directed the petitioner to furnish a security of Rs.2,00,00/- to compensate the respondent, in case if the petitioner fails to succeed in the suit and the said condition is not attacked by the counsel for the petitioner, even otherwise the Court while granting temporary injunction can impose a suitable condition, this Court is of the considered opinion that no case is made out warranting interference.

Accordingly, the petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE TG /-

Signature Not Verified Signed by: TRUPTI GUNJAL Signing time: 12-01-2023 12:22:29