Madhya Pradesh High Court
Natwar vs Anil on 13 October, 2023
Author: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
MISC. PETITION No. 4049 of 2021
BETWEEN:-
NATWAR S/O MANGILAL SISODIYA, AGED ABOUT 55 YEARS,
1. OCCUPATION: BUSINESS 15 RAJWADA ADA BAZAR (MADHYA
PRADESH)
RAJESH S/O MANGLAL SISODIYA, AGED ABOUT 51 YEARS,
2. OCCUPATION: BUSINESS 15, RAJWADA (ADA BAZAAR)
(MADHYA PRADESH)
SHYAM S/O MANGILAL SISODIYA, AGED ABOUT 49 YEARS,
3. OCCUPATION: BUSINESS 15, RAJWADA (ADA BAZAAR)
(MADHYA PRADESH)
SANJU S/O MANGILAL SISODIYA, AGED ABOUT 45 YEARS,
4. OCCUPATION: BUSINESS 15, RAJWADA (ADA BAZAAR)
(MADHYA PRADESH)
JITENDRA S/O MANGILAL SISODIYA, AGED ABOUT 55 YEARS,
5. OCCUPATION: BUSINESS 15, RAJWADA (ADA BAZAAR)
(MADHYA PRADESH)
VISHAL S/O MANGILAL SISODIYA, AGED ABOUT 41 YEARS,
6. OCCUPATION: BUSINESS 15, RAJWADA (ADA BAZAAR)
(MADHYA PRADESH)
.....PETITIONERS
(MR. CHETAN JAIN, ADVOCATE FOR PETITIONERS)
AND
ANIL S/O LT. LALARAM CHOURASIYA, AGED ABOUT 65
1. YEARS, OCCUPATION: BUSINESS 14 RAJWADA (MADHYA
PRADESH)
PREM KUMAR S/O LT. LALARAM CHOURASIYA, AGED
2. ABOUT 60 YEARS, OCCUPATION: BUSINESS 22/2, DEVI
AHILIYA MARG (MADHYA PRADESH)
RAJENDRA KUMAR S/O LT. LALRAM CHOURASIYA, AGED
3. ABOUT 55 YEARS, OCCUPATION: BUSINESS 14, RAJWADA
(MADHYA PRADESH)
Signature Not Verified
Signed by: ARUN NAIR
Signing time: 13-10-
2023 20:50:42
2
MOHD. AMIN KHA S/O HAJI GAMMU PEHALWAN 19
4.
KAADABIN MOHALLA (MADHYA PRADESH)
.....RESPONDENTS
(MR. AKHIL GODHA, ADVOCATE FOR RESPONDENT NO.3)
Reserved on: 10.10.2023
Pronounced on: 13.10.2023
_______________________________________________________
This miscellaneous petition having been heard and reserved
for orders, coming on for pronouncement this day, Justice Achal
Kumar Paliwal pronounced the following:
ORDER
This miscellaneous petition has been filed by the petitioners
under Article 227 of the Constitution of India, being aggrieved by
impugned order dated 31.07.2021 passed in Case RCS No.636-
A/2021 passed by Fourth Civil Judge, Junior Division, Indore
(MP), whereby petitioners application under Order 39 Rule 7 read
with Section 151 CPC has been rejected.
(2) The brief facts of the case are that petitioners/plaintiffs have
filed suit for permanent injunction, on the ground that the
respondents/defendants are owners of suit property and
petitioners/plaintiffs are tenants in the suit property. The
respondents/defendants have started damaging the first floor of the
suit property so that petitioners may vacate the tenanted premises.
(3) Learned counsel for petitioners/plaintiffs submits that
learned trial Court has wrongly dismissed their application under
Order 39 Rule 7 read with Section 151 of Code of Civil Procedure,
1908 (for short 'the CPC'). The petitioners have filed photographs
of suit property/tenanted premises. Therefore, in view of relief
Signature Not Verified
Signed by: ARUN NAIR
Signing time: 13-10-
2023 20:50:42
claimed in prayer clause of 17(a), it was necessary to get inspected
the upper floors of tenanted premises so that actual position might
come on record. It is also urged that application under Order 39
Rule 7 read with Section 151 CPC is maintainable at any stage.
Learned counsel has relied upon the judgment of Andhra Pradesh
High Court in the case of Satyasri Rambabu vs. Smt. A. Anasuya
and Another reported in AIR 2005 ANDHRA PRADESH 529 to
bolster his submissions and prays that this petition be allowed.
(4) Per contra, learned counsel for respondents/defendants has
submitted that this petition has become infructuous as petitioners'
application under Order 39 Rule 1 and 2 of CPC has been
dismissed and suit filed by respondents/defendants against
petitioners/plaintiffs for eviction has been decreed. Further,
petitioners are tenants in the ground floor of suit property, not of
first floor of suit property. Therefore first floor is not subject
matter of instant suit. Hence, it is also urged that in the instant
case, application under Order 39 Rule 7 CPC is not maintainable.
In this connection, he has relied upon the judgment of this Court in
the case of Balram Mahajan vs. Praveen Kumar and Others
reported in 2014 Legal Eagle (MP) 326 to substantiate his
arguments and prays that petition filed by petitioners be dismissed.
(5) I have heard learned counsel for the parties and have
perused the records of case.
(6) Admittedly, petitioners/plaintiffs are in possession of ground
floor of suit property as tenants and upper floor of suit property is
not in possession of petitioners. Further, petitioners' application
Signature Not Verified
Signed by: ARUN NAIR
Signing time: 13-10-
2023 20:50:42
under Order 39 Rule 1 and 2 of CPC has been dismissed. It is also
an admitted position that respondents/defendants suit for eviction
against the petitioners has already been decreed. A perusal of
impugned order reveal that learned trial Court, after taking into
consideration all relevant facts and circumstances of the case has
passed a well reasoned order.
(7) Therefore, in view of above, the principle laid down in the
case of Satyasri Rambabu (supra) does not apply to facts and
circumstances of the case.
(8) Hence, in this Court's considered opinion, learned trial
Court has not committed any error while passing the impugned
order, therefore the petition filed by the petitioners sans merit and
is accordingly dismissed.
(9) Petition is disposed of accordingly.
(ACHAL KUMAR PALIWAL)
JUDGE
Arun/-
Signature Not Verified
Signed by: ARUN NAIR
Signing time: 13-10-
2023 20:50:42
