Madhya Pradesh High Court
Smt. Megha Ahuja vs Dr. Benu Dubey on 4 February, 2025
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:5259
1 MA-5541-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 4th OF FEBRUARY, 2025
MISC. APPEAL No. 5541 of 2023
SMT. MEGHA AHUJA AND OTHERS
Versus
DR. BENU DUBEY
Appearance:
Shri Shri Ravi Ranjan and Shri Sushan Ranjan - Advocates for the appellant.
Shri Harish Dixt and Shri Parth Dixit - Advocates for the
respondent/caveator.
ORDER
This case was heard and reserved for order on 26.11.2024.
2. This Misc. Appeal has been filed by the appellants/plaintiffs
under Order 43 Rule 1 (r) of CPC against the order dated 03.07.2023
passed in Civil Suit No. RCSA/804/2022(Smt. Megha Ahuja and Others
Vs. Dr. Benu Dubey) by the learned 16th District Judge, Jabalpur by
which an application under Oder 39 Rules 1& 2 of CPC for grant of
temporary injunction has been dismissed.
3. The grounds of appeal are that for the suit property situated at
Jabalpur there were negotiations between plaintiffs and defendant, on the
basis of which, on 27.03.2021 defendant moved an application before
the concerned Housing Society, Jabalpur, although the same stood
rejected on 07.07.2021 by the Housing Society on the ground that
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2 MA-5541-2023
written agreement has not been filed.
4. In very brief, it is submitted by learned counsel for the
appellants that trial Court should have granted a temporary injunction to
preserve the property. It was also argued that for long time, there were
talks between the parties including their respective husband. It is also
submitted that amount of Rs.11 Lacs was sent to the defendant by way
of cheques but that was deliberately not encashed by the other party,
therefore, if the third party rights are created, it would cause irreparable
injury to the plaintiffs and balance of convenience also lies in favour of
the plaintiffs. Even otherwise, prima facie case is in favour of the
plaintiffs to grant temporary in junction.
5. It is further submitted that suit for specific performance of
contract and perpentual injunction was filed by paying court fees of
Rs.1,50,000/-.
6. On the other hand, learned counsel for respondent/caveator
Shri Harish Dixit and Shri Paras Dixit submitted that only there were
some talk between the parties but they do not deny that they had applied
for NOC, in which it is mentioned that the they are willing to sale the
suit house to Smt. Megha Ahuja, D/o Mahesh Datt, resident of Jabalpur
who is plaintiff in this case. It was also submitted that no final deal was
made and no amount was received by the defendant, therefore, there is
no ground to grant stay.
7. Both the parties were heard on 26.11.2024. Considered the
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3 MA-5541-2023
arguments and perused the record. From perusal of the case status of suit
before the trial court, it is also seen that application under order 7 Rule
11 of CPC has been rejected by the trial Court on 24.07.2024.
8. In the case of Best Sellers Retail (India) (P) Ltd. Vs. Aditya
Birla Nuvo Ltd., (2012) 6 SCC 792, the Hon'ble Supreme Court has
held that while a prima facie case is an essential condition for granting
an order of injunction in certain cases if irreparable injury and balance of
convenience overwhelmingly are in favour of the applicant an injunction
can still be granted. In the case at hand the case is still pending as the
application under Order 7 Rule 11 of CPC by the defendant has been
rejected on 24.07.2024. Meaning thereby the trial has to proceed and
judgment on merit has to be passed, therefore, it would be in nobody's is
interest that suit property is sold during pendency of the suit.
Accordingly the court has to see that no third party rights are created.
9. Therefore, in the facts and circumstance of the case instant
Misc. appeal is partly allowed and it is directed that till disposal of the
suit no third party right shall be created by the defendant/respondent.
10. Accordingly, this Misc. Appeal stands disposed of.
(AVANINDRA KUMAR SINGH)
JUDGE
NRJ
