Suresh Chandra Bohra vs Satish Kumar
2022 Latest Caselaw 14715 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 1953/2022

Suresh Chandra Bohra S/o Late Shri Jeevan Singh Ji Bohra, Aged About 76 Years, By Caste Jain, R/o Gurlan, Tehsil And District Bhilwara At Present Resident Of D-444, Azad Nagar, Bhilwara.

----Appellant Versus

1. Satish Kumar S/o Late Shri Mithu Lal Ji Bohra, By Caste Bohra (Jain), Resident Of 5-J-15, Chandra Shekhar Azad Nagar, Bhilwara.

2. Deepak Kumar S/o Late Shri Mithu Lal Ji Bohra, By Caste Bohra (Jain), Resident Of 5-J-15, Chandra Shekhar Azad Nagar, Bhilwara.

3. Smt. Kusum Lata W/o Late Shri Bharat Kumar Ji Bohra, By Caste Bohra (Jain), Resident Of 5-J-15, Chandra Shekhar Azad Nagar, Bhilwara.

4. Neha D/o Late Shri Bharat Kumar Ji Bohra, By Caste Bohra (Jain), Resident Of 5-J-15, Chandra Shekhar Azad Nagar, Bhilwara.

                                                                  ----Respondents


For Appellant(s)           :     Mr. Arvind Samdariya
                                 Mr. Jagdish Bhati
For Respondent(s)          :     Mr. Aman Lodha
                                 Mr. Yash Sharma
                                 Ms. Nidhi Singhvi



               HON'BLE MS. JUSTICE REKHA BORANA

                                      Order

14/12/2022

The present appeal has been filed against the order dated

28.07.2022 whereby the application for temporary injunction filed

by the defendant has been rejected. While deciding the

application, the trial Court has reached to a finding that the

defendant was neither in ownership nor in possession of the

(2 of 3) [CMA-1953/2022]

factory in dispute. It is relevant to note that the suit in question

was filed by the plaintiff with a relief for possession of the factory

premises, meaning thereby, it was an admitted case of the plaintiff

himself that the factory premises was in possession of the

defendant Suresh Chandra. The specific pleadings made in para

No.11 of the plaint read as under:-

"11- ;g gS fd le; ds lkFk oknhx.k 1 o 2 ds pkpk o uacj 3 ds NksVs lqlj o uacj 4 ds NksVs nknk lqjs"k pUnz ds eu esa [kksV vk tkus ls oknhx.k ds m|ksx us"kuy bUMLVªht xqjyk tks oknhx.k ds feydh;r o dCts dh gS ftldh ckmUMªh cuh gksdj QsDVªh ds vanj 5 dejs] V;wcosy o fpjkb e"khu Qkpjh;ksa gsrq yxh gS rFkk nks rjQ ckmUMªh oky gS ftldk dCtk [email protected]@2013 dks ipkZ cuk e; bZVks e"khujh lfgr jkT; }kjk fy;k x;k Fkk iqu% oknh Øe 1 dks oknhx.k ds fy, izkIr gqvk ,oa izfroknh dh ns[kjs[k esa dk;Z iqu pyus yx x;k ysfdu fglkc fdrkc u crkus o dCtk ekaxus ij iqu% lksaius ls fnukad [email protected]@2020 dks izfroknhx.k Øe 01 ls 02 us lkQ bUdkj dj fn;k izfroknh Øe 02 tks izfroknh Øe 01 dk iq= gS dCtk ugha lksaius o >xM+k dj vkeknk Qlkn gS rFkk 'kM+;U= iwoZd firk iq= iwjh QSDVªh gM+i djus dks vkeknk gSA"

A bare perusal of the pleadings makes it clear that the

specific assertion of the plaintiff was that the defendant has

illegally and forcefully taken possession of the premises and has

refused to vacate the same. Therefore, the finding as reached by

the trial Court regarding the possession of the factory premises

prima facie seems to be contrary to the pleadings and the record.

It is an admitted case of the plaintiff that defendant No.1 is in

possession of the premises in question. The rejection of the

temporary injunction application by the trial Court is solely on the

basis that the defendant was not able to prove his ownership or

possession over the premises.

In the opinion of this Court, in view of the specific admission

in the plaint itself regarding the possession of the defendant, the

(3 of 3) [CMA-1953/2022]

finding as reached by the trial court is totally contrary and cannot

be upheld.

Learned counsel for the respondents relied upon the

judgment of the Hon'ble Apex Court passed in the case of Premji

Ratansey Shah and Ors. v Union of India and Ors.; [1994

(5) SCC 547], decided on 22.07.1994 and argued that an

injunction cannot be granted against a true owner. There is no

dispute regarding the ratio as laid down in the said judgment but

the same would not be applicable in the present case as: firstly,

the said ground was never raised by the plaintiff before the trial

Court; secondly, the present one was a suit for possession filed by

the plaintiff himself wherein the counter claim was preferred by

the defendant while praying for an injunction in his favour on the

basis of admitted fact of him being in possession; thirdly, the

issue of ownership is still to be adjudicated in the suit.

In view of the above observations, the order dated

28.07.2022 is modified to the extent that both the parties shall

maintain the status quo qua the factory in dispute till the disposal

of the suit.

The present appeal is disposed of accordingly.

The stay petition also stands disposed of.

(REKHA BORANA),J 10-Sachin/-

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