Madhya Pradesh High Court
Devendra Singh vs Naib Tehsildar on 16 October, 2025
Author: Hirdesh
Bench: Hirdesh
NEUTRAL CITATION NO. 2025:MPHC-GWL:26519
1 MP-5786-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 16th OF OCTOBER, 2025
MISC. PETITION No. 5786 of 2025
DEVENDRA SINGH
Versus
NAIB TEHSILDAR AND OTHERS
Appearance:
Shri Harish Kumar Dixit- Senior Advocate assisted by Ms. Ritika
Chaubey- Advocate for petitioner.
Shri Prabhat Pateriya- Government Advocate for respondents/State.
ORDER
By way of this misc. petition under Article 227 of the Constitution of
India, the petitioner has challenged the order dated 02-09-2025 passed by
First District Judge, Gohad, District Bhind in Misc. Civil Appeal No. 32 of
2025 affirming the order dated 21-02-2025 passed by Additional Judge to the
Court of Civil Judge, Senior Division, Gohad, District Bhind in Civil Suit
No. 147-A of 2023, whereby the application filed by petitioner (plaintiff
therein) under Order 39 Rule 1 and 2 read with Section 151 of CPC has been
rejected.
2. A few facts necessary for adjudication of this petition, as narrated
therein, are that petitioner filed a suit for declaration of possession and
permanent injunction against respondents in respect of Government land
bearing survey nos. 223 and 623, situated in village Jhakari, Tehsil Mau,
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District Gohad and also filed an application under Order 39 Rule 1 and 2
read with Section 151 of CPC seeking temporary injunction. Respondent
No.1 did not file reply to the application, therefore, opportunity to file reply
was closed. Respondents No. 2 to 4 proceeded ex parte before the trial Court
and did not submit any reply to the application. The trial Court rejected the
application of petitioner filed under Order 39 Rule 1 and 2 read with Section
151 of CPC holding that petitioner has suppressed/ concealed material facts
regarding liquor shop in the Kuccha house over the land in dispute with the
permission of Excise Department. Being aggrieved, petitioner filed a misc.
civil appeal before the first appellate Court which was too dismissed by First
District Judge, Gohad, District Bhind vide order dated 02-09-2025 passed in
Misc. Civil Appeal No. 32 of 2025. Hence, this petition.
3. It is contended on behalf of petitioner that the impugned orders
passed by the trial Court and the first appellate Court are illegal and contrary
to law. The petitioner in his application along with affidavit had specifically
stated that the disputed land is inhabited land which has been in his
possession for the last 40 years, i.s. from the time of ancestors and he has
also constructed permanent structures on the disputed land and the
respondents- defendants are illegally and unethically encroaching upon the
disputed land and are being evicted from it. So far as concealment of facts by
the petitioner in civil suit regarding running of wine shop over the disputed
land is concerned, it is contended that the wine shop is duly licensed shop
of tenant of petitioner, namely, Ramkumr Sikarwar and the same is being run
in a complete legal manner under the licence of competent Government
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authority as well as with the permission of Excise Department, therefore, the
petitioner has not challenged the second part of notice in the civil suit and he
has also not sought any relief against the same before the Trial Court. Thus,
there is no concealment fact on the part of petitioner. Therefore, the Courts
below have committed error in declining to exercise its jurisdiction of
granting temporary injunction on this extraneous grounds. Placing reliance
on the judgment of Hon'ble Supreme Court in the case of Arunima Baruah
vs. Union of India and Others (2007) 6 SCC 120, learned Senior Counsel
appearing for petitioner submits that if the facts suppressed is not material for
determination of the lis between the parties, the Court may not refuse to
exercise its discretionary jurisdiction. Hence, prayed for setting aside the
impugned orders.
4. On the other hand, learned Counsel for the State, by supporting the
impugned orders passed by trial Court as well as first appellate Court,
opposed contentions of petitioner and submitted that eviction letter was
produced by petitioner before the Trial Court himself in the name of
Devendra, on perusal of which, it was found that eviction notice is regarding
illegal business being carried out by plaintiff in the disputed land by doing
business of Government liquor contract and plaintiff did not make any
statement in his application as well as in his plaint averments regarding
running of liquor contract in the disputed land due to which, it was found that
plaintiff had not come before the Court with clean hands and has deliberately
suppressed the material facts. Hence, prayed for dismissal of this petition.
5. Heard learned Counsel for the parties. Perused the impugned orders
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and documents available on record.
6. The Hon'ble Apex Court in the case of Arunima Baruah (supra ) has
observed as under:-
''It is trite law that so as to enable the court to refuse to exercise its
discretionary jurisdiction suppression must be of material fact.
What would be a material fact, suppression whereof would
disentitle the appellant to obtain a discretionary relief, would
depend upon the facts and circumstances of each case. Material
fact would mean material for the purpose of determination of the
lis, the logical corollary whereof would be that whether the same
was material for grant or denial of the relief. If the fact suppressed
is not material for determination of the lis between the parties, the
court may not refuse to exercise its discretionary jurisdiction. It is
also trite that a person invoking the discretionary jurisdiction of
the court cannot be allowed to approach it with a pair of dirty
hands. But even if the said dirt is removed and the hands become
clean, whether the relief would still be denied is the question.''
7. The trial Court as well as first appellate Court while rejecting the
application of temporary injunction filed by plaintiff under Order 39 Rule 1
and 2 read with Section 151 of CPC observed that the plaintiff has
deliberately concealed the fact in the application, but on perusal of record
including notice (Annexure P-4) and licence of liquor shop (Annexure P-3),
it is was found that plaintiff was not deliberately concealed the fact because
he has produced the notice given by respondent no.2 for shifting liquor shop
from illegal Kuccha house on Government land to some other place within
seven days and extend wholehearted co-operation to Government for
removing encroachment from Government land and to deposit the imposed
fine of Rs.20,000/-. It appears that such fact, if petitioner suppressed, is not
material for determination of lis between the parties because of the fact that
instant civil suit was filed by petitioner- plaintiff for declaration of
possession and permanent injunction as well as application seeking
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temporary injunction for protection against demolition of suit land in dispute
and dispossession of petitioner.
8. On perusal of impugned documents as well as the law laid down by
the Hon'ble Apex Court in above judgment relied on behalf of petitioner, it is
found that the learned first appellant Court instead of correcting the error of
the Trial Court, mechanically affirmed the order without independent
application of mind, holding the same reason regarding liquor operation,
which is wholly irrelevant to the lis.
9. Accordingly, the impugned orders passed by the Trial Court and
first appellate Court are hereby set aside. The application under Order 39
Rule 1 and 2 read with Section 151 of CPC filed by plaintiff deserves to be
and is hereby allowed. The respondents/authorities are directed not to take
any coercive action regarding dispossession of petitioner from the disputed
land/property and maintain status quo till final outcome of lis by the trial
Court.
10. Accordingly, the petition stands disposed of.
11. CC as per rules.
(HIRDESH)
JUDGE
MKB
