Madhya Pradesh High Court
Smt. Mohini Dhaulakhandi vs Gopaldatt Dhaulakhandi on 23 April, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 23rd OF APRIL, 2025
MISC. APPEAL No. 1611 of 2019
SMT. MOHINI DHAULAKHANDI
Versus
GOPALDATT DHAULAKHANDI AND OTHERS
Appearance:
Mr. N.K. Gupta - Senior Advocate with Mr. Kamal Mangal -
Advocate for the appellant.
Mr. Shiv Shankar Bansal - Advocate for respondents No.1 and 2.
Mr. Yash Sharma - Advocate for respondents No.3, 4, 5.
Mr. Divakar Vyas - Advocate for respondent No.6.
Mr. Sarvesh Kumar Sharma - Advocate for respondent No.7.
ORDER
The appellant/plaintiff has filed this appeal under Order 43 Rule 1(r) CPC
challenging the order dated 25.02.2019 passed by 13th Additional District Judge,
Gwalior in Civil Suit No.13-A/2016, whereby her application under Order 39
Rule 1 & 2 of CPC has been rejected. The aforesaid application has been rejected
primarily in view of the compromise decree passed in the earlier civil suit. While
rejecting the application, the learned Trial Court has also observed that, in the
application for grant of temporary injunction, the appellant has not specifically
raised an apprehension that the respondents are trying to alienate the suit
property. Observing so, the court has held that there is no prima facie case in
favour of appellant for issuance of temporary injunction.
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2 . The learned senior counsel for the appellant submitted that, the
appellant, Smt. Mohini, being the daughter of Keshavdatt, shall have 1/5th share
in the properties left by him. It is his submission that the appellant had only
consented to the relinquishment of her share by Smt. Meenakshi in favour of
Gopaldatt and Hemdatt and consequent withdrawal of criminal case by Smt.
Meenakshi lodged against her and others. He further submitted that the
compromise in earlier suit was never intended to oust the appellant from the
properties of her father. The learned Senior Counsel submitted that the learned
Trial Court seriously erred in rejecting the application solely relying upon the
compromise judgment passed in earlier suit particularly when the court itself in
para 11 of impugned order held that the question as to whether the appellant's
right in the suit property has extinguished or not, can be decided only after taking
evidence of parties. He further submitted that during the pendency of this appeal,
the respondent no.1, Gopaldatt, has sold part of suit property which is evident
from copy of sale deed, dated 19.10.2020, filed by him alongwith I.A.
No.6268/21. Therefore, observation of learned Trial Court that there is no
apprehension of property being disposed off, is misconceived. He, therefore,
prays for setting aside of impugned order passed by learned Trial Court and
issuance of temporary injunction restraining the respondents/defendants from
alienating or creating third party interest in the suit property during pendency of
suit.
3 . On the other hand, the learned counsel for respondents vehemently
opposed the submissions made by counsel for appellant and submitted that the
appellant has readily consented to the terms of compromise recorded in the earlier
suit and, therefore, the compromise judgment passed therein operates as res-
judicata and she is bound by the terms of compromise. It is their submission that
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in the opening paragraph 1 of application under Order 23 Rule 3 of CPC filed for
recording compromise, it has been mentioned that Smt. Meenakshi, Hemdatt and
Gopaldatt are having 1/3rd share in the suit property. Thus, it is their submission
that appellant has accepted that there are only three co-sharers of the property left
by Keshavdatt. The respondents' counsel also pointed out that the appellant had
earlier filed an application under Order 23 Rule 3-A of CPC for cancellation of
compromise decree in the year 2012 which was subject matter of MJC No.42 of
2013. The said application was rejected by the court vide order, dated 11.03.2016.
Thus, it is submitted that the appellant is estopped from filing fresh suit. The
respondents submitted that the suit filed by the appellant is prima facie not
maintainable in view of compromise decree, dated 11.03.2011, and the order,
dated 11.03.2016.
4 . The respondents' counsel further submitted that the appellant has
already acquired properties pursuant to the will executed by Smt. Parwati Devi
(wife of Keshavdatt). It is their submission that in the same will, the appellant
was divested of her share in remaining properties. The respondents thus submit
that there is no prima facie case in appellant's favour and the learned Trial Court
was justified in rejecting the application under Order 39 Rule 1 & 2 of CPC filed
by her. They accordingly prayed for dismissal of this appeal.
5. Before adverting to merits of the case, it is profitable to refer to the
judgment rendered by this Court in the case of Shankerlal vs. State of M.P.
reported in 1977 SCC Online MP 110 wherein the meaning of prima facie case
vis-a-vis Order 39 Rule 1 & 2 CPC have been considered. This court held thus:
"The question that falls for determination in this revision is whether the
plaintiff has made out a case for grant of temporary injunction. This requires
examination of the principles on which temporary injunctions are granted.
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Although it is often said that a plaintiff must show a prima facie case in
support of the right claimed by him in the suit before he can be granted
temporary injunction, the real thing to be seen only is that the plaintiff's claim
is not frivolous or vexatious; in other words, that there is a serious question to
be tried. It is not the function of the Court at this stage to resolve disputed
questions of fact or difficult questions of law which should be left to be decided
at the conclusion of the trial. After the plaintiff succeeds in showing that there
is a serious question to be tried, he has further to show that the balance of
convenience lies in favour of granting temporary injunction. In this connection,
it is relevant to enquire whether the plaintiff can be adequately compensated by
an award of damages if he succeeds in establishing the right claimed. The
Court should also consider whether the defendant can be adequately
compensated if the plaintiff is directed to pay damages for the loss resulting to
him from the grant of injunction in case ultimately the suit fails. The extent of
disadvantages to each party which cannot be compensated by award of
damages in the event of his succeeding in the suit is a very material
consideration for determining where balance of convenience lies. If such
disadvantages may be of equal strength, the relative strength of each party's
case as shown from documents and affidavits may be assessed. If relevant
competing factors are equally balanced, prudence may lie in maintaining the
status quo. These principles are to be generally observed in the grant of
temporary injunctions, but there may be special factors of a particular case
which may require a different approach. For example, in cases where the
plaintiff and defendant both claim to be in possession of the suit property,
temporary injunction should not be granted restraining the defendant from
interfering with the plaintiff's possession unless the Court finds a very strong
probability that the plaintiff is in possession. Further, the grant of injunction in
such cases must be on the condition that the plaintiff will pay damages to the
defendant in case ultimately he is found to be out of possession."
6 . It has thus been held that the use of expression prima facie case in the
context of exercise of discretionary power to grant temporary injunction often leads
confusion as to the object sought to be achieved by this form of temporary relief. It is
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held that the court at this stage is only required to see that there is a serious question to
be tried. Keeping in view of the aforesaid interpretation of Order 39 Rule 1 & 2 CPC,
the facts of the present case are required to be seen.
7 . The parties to the suit are related to each other. The properties in
question initially belonged to one Keshavdutt Dhaulakhandi. He had three sons
namely Gopaldutt Dhaulakhandi (defendant no.1), Hemdutt
Dhaulakhandi (defendant no.2) and Ramdutt Dhaulakhandi (now represented
through his widow Smt. Meenakshi, defendant no.3) while two daughters namely
Smt. Mohini (appellant/ plaintiff) and Smt. Kamla Sharma (defendant no.4).
8 . In the earlier round of litigation, a suit was filed by Gopaldatt
Dhaulakhandi for declaration and permanent injunction in respect of properties
left by Keshavdatt Dhaulakhandi. It was subject matter of C.S. No.11-A of 2011.
The said suit was filed with the assertion that the three sons of Keshavdatt are
having 1/3rd share in the property left by him. Importantly, the said suit was filed
on 08.03.2011 and immediately within three days a compromise decree was
passed in the said suit on 11.03.2011. In para 6 of the compromise judgment, it
has been noted that defendant no.1, 3, 6 to 8 entered appearance in the case only
on 11.03.2011 i.e. the date on which the compromise decree was passed. The
appellant was defendant no.7 in the said suit. Meaning thereby, she entered
appearance in the case on the same day when the compromise decree was passed.
It is also noted in the same paragraph that the application under Order 23 Rule 3
of CPC was filed in the case on 11.03.2011 only. The statement of parties,
including statement of appellant, were recorded on the same day. Meaning
thereby, all the proceedings regarding passing of compromise decree, including
appearance of defendants therein, was concluded in one day. The suit itself was
decided within three days. Yet another important aspect of the matter is that in
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para 13(7) of the judgment, dated 11.03.2011, it has been mentioned that
defendant no.5 to 8 (appellant was defendant no.7) are formal parties in the suit.
9. Now, since the parties in this case are at logger heads with regard to
interpretation of terms of said compromise, it is profitable to examine the terms of
compromise judgment passed in C.S. No.11-A of 2011. The judgment, dated
11.03.2011, passed in earlier Civil Suit No.11-A/2011 has been placed on record
along with I.A.No.1965/2023. The terms of compromise have been detailed in
paragraph - 13 of the aforesaid judgment, which reveals that the compromise was
only in respect of claim of Smt. Meenakshi in the properties left by Keshavdatt.
As is evident from clause 1 of para 13, Smt. Meenakshi relinquished her share in
the properties in favour of Gopaldatt and Hemdatt Dhaulakhandi and in lieu
thereof, a sum of Rs.2 crore was paid to her. As per clause 3 thereof, Smt.
Meenakshi also agreed that she would not press the criminal case lodged by her
against Hemdatt, Smt. Kamla Sharma, Jiwan Sharma, the appellant and Chetna
Dhaulakhandi which was pending in court at Faridabad (Haryana). It is found that
no part of the property was divided by metes & bound. Thus, at best, prima facie ,
the said compromise judgment can be relied upon to say that Smt. Meenakshi
relinquished her share in the properties in favour of Gopaldatt and
Hemdatt. Pertinently, the said compromise judgment only talks about 1/3rd share
of Smt. Meenakshi, but not specifically about the properties. In other words, it
appears that the compromise was entered into only to decide the claim of Smt.
Meenakshi in the properties left by Keshavdatt. In other words, she relinquished
her share in the properties by taking Rs.2 crore. Thus, prima facie, it cannot be
said that all properties were partitioned by metes & bound between all the co-
sharer. Further, the entire compromise judgment does not mention about
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remaining 2/3rd property of Keshavdatt.
10. The appellant has now filed the present suit, wherein besides other
relieves, she is seeking a declaration that the properties left by Keshavdatt and
Smt. Parwati and/or properties purchased by them, are the undivided joint Hindu
family properties and she has 1/5th share therein. She has also prayed for partition
of the property by meets and bounds and for delivery of separate possession of her
share therein. In para 8 & 18 of the plaint, she has pleaded about various
alienations made by defendants while in para 9 to 13 thereof she has pleaded
about the compromise decree passed in earlier suit. She has pleaded the
circumstances in which she was made to become part of said compromise. She
has also pleaded that no relief was claimed against her in the said suit. Further, in
para 12 of plaint she has stated that she was made party in the suit only on
11.03.2011 and same day her statement was recorded and decree passed. She has
further pleaded in para 14, that the earlier suit was mainly filed against Smt.
Meenakshi and no relief was claimed against her. She has then disclosed about
filing of MJC No.42/13 filed by her for cancellation of compromise decree.
Importantly, in para 13 & 16 of plaint, the appellant has pleaded about non-
fulfillment of terms of compromise by defendants and consequent sale of property
by Smt. Meenakshi after passing of compromise decree. She has also disputed the
fact mentioned in compromise application about 1/3rd share of defendant no.1 to
3 and has stated that she also has 1/5th share therein. In para 20 of plaint, she has
pleaded her ouster from the family properties.
11. Along with the plaint, the appellant also filed an application under
Order 39 Rule 1 and 2 of CPC, praying for issuance of temporary injunction
restraining the defendants from alienating or creating any third party interest in
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the suit property during pendency of the suit. The reply to the application was
filed only by respondent no.1. This application has been rejected by learned Trial
Court in the manner stated above.
1 2 . This court has extensively narrated the recitals of compromise
judgment and the plaint of present suit. From reading the same, various questions
cropped up for determination of learned Trial Court in the suit viz. whether the
compromise decree in C.S. No.11-A/11 determines the appellant's rights also in
the suit property; whether the said judgment would operate as res-judicata against
the appellant in this suit; whether the compromise entered into in earlier suit was
a bonafide one in the facts and circumstances of the case; whether the
compromise in the earlier suit actually partitioned the entire properties between
the parties by metes and bound or it was only a decree determining the rights of
defendant no.3 alone; whether the appellant is stopped from filing of this suit in
view of order, dated 11.03.2016, passed in MJC No.42/13 and whether such an
application was maintainable; whether merely by reciting in para 1 of application
under Order 23 Rule 3 CPC that only defendant no.1 to 3 (of this suit) has 1/3rd
share in properties would amount to admission on the part of appellant? All these
issues being seriously contentious and are having serious bearing on the
appellant's right in the properties left by her father, in the considered opinion of
this court, there are serious questions to be tried in the suit which makes out a
prima facie in favour of appellant.
13. So far as the observation of learned Trial Court that the appellant has
not pleaded about apprehension of the suit property being sold by the defendants,
needless to mention here that in the plaint she has specifically pleaded about
alienation already made by defendants. Further, during the pendency of this
appeal also, the defendants have sold part of the suit property. Therefore, the
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apprehension regarding alienation of suit property could easily be drawn from the
circumstances also. The observation made above should not be taken as if there is
no requirement to make such allegations. However, in the facts of the given case,
if it is made out that there is apprehension of property being disposed off, the
same can be taken into account.
14. Learned counsel for the respondents raised a serious objection with
regard to the maintainability of the suit firstly on the ground that plaintiff is
bound by the terms of compromise decree and secondly on the ground that after
passing of the compromise decree, she has filed an application under Order 23
Rule 3-A read with Section 151 of CPC, thereby praying for cancellation of the
compromise decree. It is their submission that this application has been rejected
by learned Trial Court vide order dated 11.03.2016. They thus submit that the
appellant having lost in the said application, she cannot re-agitate the same
ground in the instant suit. The respondents have further submitted that the
appellant has filed the present suit by suppressing various facts including the
effect of filing the application under Order 23 Rule 3-A of CPC and therefore, she
has not come up with clean hand before this Court, no injunction can be issued in
her favour.
15. Considering the objections so raised, it is suffice to mention firstly that
there is no such objection raised in reply to application filed respondent no.1
regarding application filed under Order 23 Rule 3-A CPC. Even otherwise, the
effect of order, dated 11.03.2016, is required to be seen after considering the
order alongwith pleadings of said case. Further, it is informed that against the
order dated 11.03.2016, civil revision has been filed which is pending before this
Court and therefore, it cannot be said that the aforesaid order has attained finality.
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The judgment rendered by Apex Court in the case of Shree Surya Developers and
promoters Vs. N. Sailesh Prasad & others, reported in 2022 (3) MPLJ 574, in the
case of Trilok Nath Singh Vs. Anirudh Singh (Dead) through legal
representatives and others, reported in (2020) 6 SCC 629 and in the case of R.
Janakiammal Vs. S.K. Kumarsamy (deceased) through legal representatives and
others, reported in (2021) 9 SCC 114 also does not help the respondents
inasmuch as in the said case, the compromise decree was challenged in a suit
which was held maintainable. However, in the present case, the issue is as to
whether the compromise decree has decided the rights of parties and whether the
entire property was partitioned between the parties.
16. Yet another objection raised by learned counsel for respondents that the
appellant has already been granted her share by way of will executed by Smt.
Parwati Devi and by way of said will, she was ousted from rest of the properties.
This objection is also not acceptable, atleast at this stage, inasmuch as this
objection also not found to have been taken before the learned Trial Court. Even
otherwise, as per clause 3 of compromise judgment, dated 11.03.2011, the parties
have agreed that the parties shall not press the said will in view of compromise.
17. Another objection raised by the respondents regarding suppression of
fact of filing of application under Order 23 Rule 3-A of CPC does not appears to
be correct inasmuch as the appellant has disclosed this fact in para 14 of her
plaint. Thus, the judgment rendered by this court in the case of Mukesh Kumar
Ahiravar Vs. State of M.P. & others, reported in 2019 (4) MPLJ 86 also does not
help the respondents.
18. The objection raised by learned senior counsel for appellant that other
respondents have not even filed the written statement and, therefore, the
documents which were not referred in the pleadings of the parties and which were
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not considered by learned Trial Court cannot be made subject matter in this
appeal, needs to be favourably considered. The respondents are yet to make their
pleading in this regard and to establish said facts by way of evidence during trial.
19. The learned counsel for respondents relied upon judgment passed in the
case of Pooja Mittal & ors. Vs. Rakesh Kumar & others in Civil Appeal
No.2737/2020 to say this court does not have jurisdiction to interfere with Trial
Court's order and direction to maintain status quo could not be passed. In the case
before Apex Court, the High Court directed for maintenance of status quo without
adverting to the findings of Trial Court. However, in the present case, this court
has come to the conclusion that the learned Trial Court failed to take into account
the nature of compromise decree passed in earlier suit and has casually rejected
the application in view of said compromise decree. Yet another judgment of this
court relied upon by respondents' counsel regarding scope of interference by this
court is rendered in the case of Suman Chouksey Vs. Dinesh Kumar & others,
reported in 2019 (4) MPLJ 393 . If the said judgment is seen, it has been held that
Appellate Court cannot interfere unless it is held that Trial court has acted
arbitrarily, capriciously or perversely. In the case in hand, it has been found that
learned Trial Court has not considered the scope of compromise in earlier suit. It
has been found that the compromise recorded in earlier suit did not partition the
entire properties between the parties nor there was any conclusive relinquishment
of her rights by appellant. The view taken by Trial Court is thus found to be
arbitrary and is perverse. This judgment also does not help the respondents.
20. The Apex Court's observations in the matter of grant of temporary
injunction in such circumstances, made in the case of Maharwal Khewaji Trust
(Regd.) vs. Baldev Dass reported in (2004)8 SCC 488 , are relevant are
reproduced thus:
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"10. Be that as it may, Mr Sachar is right in contending that unless and until a
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 being changed which also includes
alienation or transfer of the property which may lead to loss or damage being
caused to the party who may ultimately succeed and may further lead to
multiplicity of proceedings. In the instant case no such case of irreparable loss
is made out except contending that the legal proceedings are likely to take a
long time, therefore, the respondent should be permitted to put the scheduled
property to better use. We do not think in the facts and circumstances of this
case, the lower appellate court and the High Court were justified in permitting
the respondent to change the nature of the property by putting up construction
as also by permitting the alienation of the property, whatever may be the
conditions on which the same is done. In the event of the appellant's claim
being found baseless ultimately, it is always open to the respondent to claim
damages or, in an appropriate case, the court may itself award damages for the
loss suffered, if any, in this regard. Since the facts of this case do not make out
any extraordinary ground for permitting the respondent to put up construction
and alienate the same, we think both the courts below, namely, the lower
appellate court and the High Court erred in making the impugned orders. The
said orders are set aside and the order of the trial court is restored."
21. In view of discussions made above, the finding of the learned Trial
Court that there is no prima facie case in appellant's favour is held to be perverse
having been reached without properly considering the facts of the compromise
recorded in earlier suit. The findings thus recorded are unsustainable. It is found
that there are serious issues raised by the appellant which needs to be tried in the
civil suit and thus appellant has prima facie in her favour. Since, the respondents
are alienating the suit property, as discussed above, the balance of convenience is
also in appellant's favour. The irreparable injury that may be caused to appellant,
if the properties are allowed to be alienated, is also apparent. On the other hand,
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the respondents would not suffer irreparable injury if they are injuncted from
alienating the suit property. Thus, the order, dated 02.02.2019, passed by the
learned Trial Court is set aside . The respondents are restrained from alienating or
creating any third party right and/or interest in the suit property during pendency
of the civil suit.
22. The observations and discussions made by this Court of the facts and
law herein before are only for purposes of deciding the application under Order
39 Rule 1 and 2 CPC and would not prejudice the case of either of the parties in
the trial. Thus, the appeal is accordingly allowed in the aforesaid terms.
23. This lis is mainly between brothers and sisters. All are well educated
and belongs to well to do family. The suit was filed in the year 2015 and they are
still litigating on decision of application under Order 39 Rule 1 & 2 CPC. This is
only first step in the courts and it is still a long say to go. Keeping all these
circumstances in view, the parties are well advised to explore the possibilities of
mutually settle the issues so that their relations also remain cordial. This court
hope and trust that, as the wisdom prevailed over the parties in the earlier suit,
they would make effort to settle the issues amicably and mutually.
(ASHISH SHROTI)
JUDGE
bj/-
