Madhya Pradesh High Court
Premnarayan Shivhare vs Nemi Chandra Jain on 9 January, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
MISCELLANEOUS PETITION No. 5503 of 2024
PREMNARAYAN SHIVHARE AND OTHERS
Versus
NEMI CHANDRA JAIN AND OTHERS
Appearance:
Shri Ankur Mody - Advocate appeared for petitioner.
Shri Yash Sharma, learned counsel for the respondent [CAVEAT].
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Reserved on 17/12/2024
Delivered on 09/01/2025
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ORDER
The instant petition under Article 227 of the Constitution of India
is preferred against the order dated 03.07.2024 passed by Civil
Judge, Senior Division, Gwalior in Civil Suit No.RCSA 122/2024
and order dated 07.08.2024 passed by 10 th District Judge, Gwalior
in MCA No.126/2024, whereby an application under Order 39
Rule 1 and 2 CPC preferred by the respondents no.1 and
2/plaintiffs was allowed and affirmed in appeal restraining the
present petitioners from interfering with the peaceful possession
of plaintiffs as well as not to make any efforts to evict them from
the suit property either by themselves or through any agent nor the
petitioner would be entitled to alienate the suit property till next
orders and was affirmed in the appeal.
2. Learned counsel for the petitioners had vehemently argued
that the respondents no.1 and 2/plaintiffs had purchased the suit
property from one Mamta Agarwal and one Radha Agarwal being
consenting party by way of registered sale-deed dated 03.12.2015,
who had acquired right and title in the property by way of
registered sale-deed dated 01.04.2006 when admittedly the
predecessor in title of Mamta Agarwal and Radha Agarwal i.e.
Chironji Lal had mortgaged the said suit property on 21.06.2001
with Punjab and Sindh Bank Branch Jayendraganj, Lashkar
Gwalior, therefore, legally Mamta Agarwal and Radha Agarwal
themselves had no right and title in the property and thus, could
not have transferred a better title to the plaintiffs in the year, 2015
from the title which they had and as Chironji lal who was the
original title holder of the property could not repay the loan, the
suit property which was kept mortgaged with the bank was
symbolically taken into possession on 07.10.2021 and was
auctioned through NIT dated 07.05.2022 published in newspapers
and the petitioners were declared successful bidders vide sale-
deed dated 02.01.2023. Sale-deed was executed in favour of Smt.
Manju Rai w/o Shri K.K. Shivhare and by way of said sale-deed
she became the rightful owner and possession holder of the suit
property and accordingly, had also got her name mutated in the
municipal records. Thus, when the predecessor in title of the
plaintiffs themselves had no better title, they could not have
transferred the same to the plaintiffs and as the present petitioners
are in occupation of the suit property, the injunction granted in
favour of respondents no.1 and 2/plaintiffs is greatly prejudicing
the rights of the petitioners, thus, it is prayed that the orders
impugned herein being per se illegal deserves to be set aside.
3. It was further argued that for the purpose of proving a prima
facie case there has to be proof of prima facie title and as the
plaintiffs are claiming their title through Mamta Agarwal and
Radha Agarwal who themselves had purchased the property when
the property was kept in mortgage with the bank had no good title
to transfer even though the property was transferred way back in
the year, 2015 could not confirm a better title over respondents
no.1 and 2/plaintiffs, thus, the very first limb of Order 39 Rule 1
and 2 CPC as to prima facie case is not established in favour of
respondents no.1 and 2/plaintiffs, the impugned orders suffers
from perversity and illegality, thus, are liable to be set aside.
4. It was further argued that since the bank had already taken
possession of the property in question and had handed over to the
petitioner in exercise of powers of SARFAESI Act there are
presumptions about correctness of those proceedings and it could
very well be said that the possession has rightly been handed over
to the petitioners and since the said proceedings had not been
challenged by the plaintiffs, the order granting injunction is not
sustainable.
5. To bolster his submissions reliance was placed in the matter
of Vindhya Telelinks Ltd. vs. State Bank of India and Ors
reported in 1995 JLJ 609, in the matter of K.R. Vijay Kumar vs.
D. Ponnuvel and Ors passed in CRP (PD) No.3756 of 2018 and
CMP No.20948 of 2018 by Single Bench of High Court of
Judicature at Madras.
6. On the other hand, learned counsel for the respondents
while placing reliance in the matter of Suman Chouksey vs.
Dinesh Kumar and Ors reported in 2019 (4) MPLJ 393 and in
the matter between same parties while adjudicating rejection of an
application under Order 1 Rule 10 CPC in M.P. No.1923/2024
dated 24.09.2024 had argued that the Trial Court while addressing
on the questions of three-fold principles, namely, prima facie case,
balance of convenience and irreparable injury has in fact dealt
with all relevant facts and documents quite diligently with
maturity and had reached to an impeccable conclusion which
needs not interference as the factum of the property in question
being kept mortgaged with the Bank and due to the said fact the
predecessor in title of the plaintiffs had no better title which could
have been transferred, is yet to be analyzed and proved by the
petitioners and not only this at the time of adjudicating the
application under Order 39 Rule 1 and 2, it is settled law that the
Courts are not required to go into the question of title and the only
aspect which is required to be gone into is with regard to the
possession over the property, where the dispute is with regard to
immovable land and as learned Trial Court as well as Appellate
Court had found that the respondents no.1 and 2/plaintiffs are in
settled possession of the suit property since 2015, it is required to
be protected, which is the correct interpretation of the provisions
of Order 39 Rule 1 and 2 which needs no interference.
7. It was further argued that once the Courts below had found
that prima facie case do exists in favour of respondent no.1 and
2/plaintiffs and as a natural corollary balance of convenience
would also exist in favour of the plaintiffs and, therefore,
irreparable loss would be caused to the plaintiffs. It was, thus,
prayed that the present petition has no sum and substance and
merits, therefore, be dismissed.
8. Heard.
9. It is a settled preposition that the plaintiffs at the stage
seeking temporary injunction is not required to make out clear
legal title, but has only to satisfy the Court that he has fair
question to raise as to the existence of the legal right claimed by
him in the suit. Therefore, unless the material available to the
Court at the hearing of the application for an interlocutory
injunction fails to disclose that plaintiff has any real prospect of
succeeding in his claim for a permanent injunction at the trial, the
Court should go on to consider whether the balance of
convenience lies in favour of granting or refusing the
interlocutory relief that is sought. For ready reference para 10 of
the judgment passed in Suman Chouksey (supra) is quoted herein
below:
"10.The grant of temporary injunction and
interference by the appellate Court in regard to
such discretionary order, the Hon'ble Supreme
Court in the case of Wander Limited vs. Antox
India (P) Ltd. Reported in 1990 Supp SCC 727
observed as under:
"... the Appellate Court will not interfere with the
exercise of discretion of the court of first instance
and substitute its own discretion except where the
discretion has been shown to have been exercised
arbitrarily, or capriciously or perversely or where
the court had ignored the settled principles of law
regulating grant or refusal of interlocutory
injunctions. An appeal against exercise of
discretion is said to be an appeal on principle.
Appellate Court will not reassess the material and
seek to reach a conclusion different from the one
reached by the court below if the one reached by
the court was reasonably possible on the material.
The appellate court would normally not be
justified in interfering with the exercise of
discretion under appeal solely on the ground that
if it had considered the matter at the trial stage it
would have come to a contrary conclusion. If the
discretion has been exercised by the Trial Court
reasonably and in a judicial manner the fact that
the appellate court would have taken a different
view may not justify interference with the trial
court's exercise of discretion."
10. Herein case the respondents no.1 and 2/plaintiffs are
seeking declaration on the strength of a sale-deed dated
03.12.2015 executed by one Mamta Agarwal and Radha Agarwal
and the petitioners are claiming their right and title through a sale-
deed dated 02.01.2023 executed by Punjab and Sindh Bank with
which the property was alleged to be kept as mortgage by
predecessor in title of respondents no.1 and 2/plaintiffs. Both the
courts had found that the actual possession of the property is with
respondents no.1 and 2/plaintiffs and though it is alleged by the
petitioners that they have purchased the property by way of
auction from the bank, there is no finding with regard to their
possession over the suit property, thus, this Court finds that both
the Courts below after meticulously examining the entire material
placed before them and upon relative assessment and critically
evaluating them had addressed upon the issue with regard to
prima facie case, balance of convenience and irreparable loss
while granting the interlocutory injunction in favour of the
petitioners which does not warrant any interference. The orders so
passed are speaking and well reasoned.
11. Before parting with the case, it is made clear that this Court
has not expressed any opinion on merits of the case. Any
observation made or discussion on merits in this order is only for
the purpose of disposal of this petition and shall not have any
bearing on merits of the case in Trial.
12. Accordingly, the present petition is hereby disposed of.
(Milind Ramesh Phadke)
Judge
chandni/ 09/01/2025
CHANDNI
NARWARIYA
2025.01.09
18:22:39
+05'30'
