Rajasthan High Court
Rohit Marwah S/O Late Sh. ... vs Paridhi Marwah D/O Late Shri Rajiv ... on 7 April, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 1774/2021
Rohit Marwah S/o Late Sh. Harwanshlal Marwah, R/o A-76, R.K.
Puram, Kota, Rajasthan presently residing at House No. 47,
Vallibh Nagar Exsel, Kota, Rajasthan-324007
----Appellant
Versus
1. Paridhi Marwah D/o Late Shri Rajiv Marwah, Minor
Through Mother Smt Honey Marwah R/o House No. 1-D-
1, Sfs Colony, Talwandi Kota Rajasthan.
2. Vansh Marwah S/o Late Sh. Rajiv Marwah, Through
Mother Smt Honey Marwah R/o House No. 1-D-1, Sfs
Colony, Talwandi Kota Rajasthan.
3. Smt Chanchal Rani Marwah W/o Late Sh. Harwansh
Marwah, R/o A-76, R.k. Puram, Kota, Rajasthan.
4. Sh. Liladhar Namdev S/o Nandkishor Namdev, R/o House
No. 24, Agrasen Colony, Dadabadi, Kota, Rajasthan.
----Respondents
For Appellant(s) : Mr. Hitesh Kumar
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
07/04/2022
By way of this civil miscellaneous appeal, the order dated
24.01.2020 passed by Additional Session Judge-3, Kota in suit
No.192/2019 on the application for temporary injunction filed
under Order 39 Rules 1 & 2 CPC by respondents-plaintiffs has
been challenged by appellant-defendant.
It appears from the record that respondents-plaintiffs have
filed a civil suit for partition claiming 1/3 share in the suit
properties comprising House No.169-E Shrinathpuram, Kota,
(2 of 3) [CMA-1774/2021]
Commercial Plot No.160, Transport Nagar Yojna, Kota and Sand
Stone Mine ML No.71/91 at Dabi. The suit properties have been
alleged to be ancestral belonging to Shri Harwanshlal Marwah,
who is said to be passed away on 22.09.2016. Shri Harwanshlal
Marwah is said to be survived by his wife and two sons namely
Smt. Chanchal Rani Marwah, Rohit Marwah and Rajeev Marwah.
His son Rajeev Marwah has also passed away. The daughter and
son of late Shri Rajeev Marwah have filed the present civil suit for
partition, claiming their 1/3 share in the suit properties left by Shri
Harwanshlal Marwah intested.
During pendency of civil suit for partition, the trial court has
granted temporary injunction in favour of respondents-plaintiffs to
maintain the suit properties intact.
Learned counsel for appellant submits that the Sand Stone
Mine ML No.71/91 at Dabi is not ancestral left by Shri Harwanshlal
Marwah but it is the personal property of appellant. It appears
that no such defence/objection has been raised by appellant in the
reply to the application for temporary injunction nor before the
trial court. Further the appellant has not produced any evidence to
substantiate his argument before this Court. The trial court has
decided the application for temporary injunction on the basis of
pleadings made by parties and the material produced by the
parties before the trial court. The grant of temporary injunction is
a matter of discretion and once the trial court has expressed its
discretion on appreciation of the pleadings and material placed
before him, the appellate court is not required to be interfered
with unless and until the same is found to be perverse or
impossible view.
(3 of 3) [CMA-1774/2021]
Hon'ble the Supreme Court in case of Mohd. Mehtab Khan
& Ors. vs. Khushnuma Ibrahim Khan & Ors. reported in
[(2013) 9 SCC 221] has held that if the view expressed by trial
court while deciding the application for temporary injunction is a
possible view, the appellate court should not interfere in that view.
The discretion exercised by the trial court cannot be substituted by
the appellate court by its own view. That apart, the argument
raised by appellant before this Court in appeal is not raised before
the trial court neither in his pleadings nor during course of
argument. Hence, the appeal is not liable to be entertained and
the same is hereby dismissed.
All pending application(s), if any, stand(s) disposed of.
(SUDESH BANSAL),J
SAURABH/11
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