Anand Kumar Bhansali vs Anil Kumar Bhansali
2023 Latest Caselaw 1688 Raj

[2023/RJJD/004944]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 1418/2022

Anand Kumar Bhansali S/o Late Paras Singh Bhansali, Aged About 64 Years, R/o 7355, SW 96 Street Miami, Florida 33156 (USA) through his oower of attorney holder Sh. Kamal Prakashji Rathi, S/o Shri Gopi Kishanji Rathi Aged 66 Years, R/o A-19, Nulite Colony, Near Kamal And Company, Tonk Road, Jaipur 302018 (Raj.)

----Appellant Versus

1. Anil Kumar Bhansali S/o Late Paras Singh Bhansali, R/o D-42, Shastri Nagar, Jodhpur.

2. Smt. Manju Bhansali W/o Anil Kumar Bhansali, R/o D-42, Shastri Nagar, Jodhpur.

3. Vaibhav Bhansali S/o Anil Kumar Bhansali, R/o D-42, Shastri Nagar, Jodhpur.

4. Smt. Rajshree Bhansali W/o Vaibhav Bhansali, R/o D-42, Shastri Nagar, Jodhpur.

5. Smt. Subhadra Mehta W/o Shri Ashok Mehta, R/o Trimurti Kohinoor Garden Apartment, Flat No. A-26, Shyam Vihar Dadawari Road, Sanganer, Jaipur 302029.

6. State Bank Of India, Branch Jaljog Circle, Jodhpur Through Branch Manager.

----Respondents Connected With S.B. Civil Misc. Appeal No. 1733/2022 Smt. Subhadra Mehta W/o Shri Ashok Mehta, Aged About 67 Years, R/o Trimurti Kohinoor Garden Apartment, Flat No. A-26, Shyam Vihar Dadawari Road, Sanganer, Jaipur 302029.

----Appellant Versus

1. Anil Kumar Bhansali S/o Late Paras Singh Bhansali, R/o D-42, Shastri Nagar, Jodhpur.

2. Smt. Manju Bhansali W/o Anil Kumar Bhansali, R/o D-42, Shastri Nagar, Jodhpur

3. Vaibhav Bhansali S/o Anil Kumar Bhansali, R/o D-42, Shastri Nagar, Jodhpur

[2023/RJJD/004944] (2 of 12) [CMA-1418/2022]

4. Smt. Rajshree Bhansali W/o Vaibhav Bhansali, R/o D-42, Shastri Nagar, Jodhpur

5. Anand Kumar Bhansali S/o Late Paras Singh Bhansali, 7355, SW 96 Street Miami, Florida, 33156 (USA)

6. State Bank Of India, Branch-Jaljog Circle, Jodhpur Through Branch Manager.

----Respondents

For Appellant(s) : Mr. O.P. Mehta with Mr. Vasudeo Gaur Mr. Muktesh Maheshwari with Mr. Aidan Choudhary For Respondent(s) : Mr. Bharat Vyas, Sr. Advocate with Mr. Rahul Joshi (Through VC) Mr. Vikas Balia, Sr. Advocate with Mr. Hemant Ballani

HON'BLE MS. JUSTICE REKHA BORANA

Judgment

13/02/2023

Both the appeals arise out of the order dated 05.05.2022

and hence the same have been heard and are being decided

together.

Vide the impugned order dated 05.05.2022, the Additional

District Judge No.7, Jodhpur Metropolitan (hereinafter referred to

as 'the learned Trial Court') has proceeded on to pass an ad

interim order which reads as under :

"bl voLFkk esa oknxzLr lEifRr dks lajf{kr o lqjf{kr fd;k tkuk U;k;ksfpr izrhr gksrk gS ijarq bl voLFkk esa bl U;k;ky; dks bl fcanq ij fopkj djuk gS fd bl foHkktu ds nkos dk vafre :i ls fu.kZ; gksus esa] ftlesa nksuksa i{kksa dh vihy izLrqr djus ds vf/kdkj Hkh 'kkfey gS] vusd o"kZ yxus dh vk'kadk gSA vr% bl voLFkk esa vizkFkhZx.k la[;k 01 ls 04 dks tfj;s varfje fu"ks/kkKk ikcan fd;k tkrk gS fd os oknxzLr lEifRr dk jgu] cS;] foØ; ;k fdlh vU;

izdkj ls LokfeRo dk varj.k fdlh rhljs i{kdkj dks u djsa] bl ij

[2023/RJJD/004944] (3 of 12) [CMA-1418/2022]

yksu bR;kfn ysdj fdlh Hkkj dk l`tu u djsaA vizkFkhZx.k la[;k 01 ls 04 bl lEifRr dk iwoZor mi;[email protected] O;oLFkk djus ds fy, iw.kZr% Lora= gSA bl lEifRr esa fdlh izdkj dh ejEer vkfn djus ds fy, Hkh os iw.kZr% Lora= gSaA ;fn muds }kjk bl nkos ds yafcr jgus ds nkSjku blesa fdlh izdkj dk dksbZ fuekZ.k dk;Z fd;k tkrk gS] rks blds vk/kkj ij muds i{k esa fdlh vf/kdkj dk l`tu ugha gksxkA ;fn nkos ds yafcr jgus ds nkSjku bl lEifRr dks fdlh rhljs i{kdkj dks fdjk;s ij fn;k tkrk gS rks fdjk;snkj dks bl nkos ds vafre fu.kZ; ds v/khu gh vf/kdkj izkIr gksaxsA "

The present appeals have been preferred by the plaintiff &

defendant No.5 respectively against the above order only to the

extent it permits the respondents No.1 to 4 to raise construction

over the disputed property and to let it out although with certain

conditions.

The brief facts of the case are as under :

A suit for partition, rendition of accounts and permanent

injunction was preferred by the plaintiff-Anand Kumar Bhansali on

04.05.2022. Along with the suit, an application under Order XXXIX

Rule 1 & 2, CPC with a prayer for interim relief was also preferred.

The notices of the temporary injunction application were served on

the defendants in the evening of the same date and the matter

was directed to be posted on the very next date. On 05.05.2022,

after hearing both the parties, the learned Trial Court proceeded

on to pass the ad interim order as reproduced above. Vide the

order impugned, the learned Trial Court has restrained the

defendants no.1 to 4 from creating any third party interest in the

suit property by any mode of transfer i.e. mortgage, sale etc.

However, the defendants have been permitted to use the suit

property in the manner they were using it previously. With the

said restraint order, the learned Trial Court proceeded on to hold

[2023/RJJD/004944] (4 of 12) [CMA-1418/2022]

that the defendants would be free to take up repairs etc. in the

property with a rider that if any construction work is taken up, no

right because of the said construction would be created in their

favour. Further that if the property is let out to any third party

during pendency of the suit, the tenant/third party would be

entitled to the rights accrued only till disposal of the present suit.

It is against the above mentioned order that the present

appeals have been preferred by the plaintiff as well as defendant

no.5 only to the extent whereby the learned Trial Court has

permitted the defendants no.1 to 4 to raise construction as well as

to let out the suit property.

Although the prayer made in the present appeals is limited to

the above mentioned extent, the arguments raised by both the

parties before this Court were totally on the different footing.

During the course of arguments, it has been argued that

subsequent to the passing of the order impugned dated

05.05.2022, the defendants-respondents have taken up the

commercial activities in the premises and therefore, they be

restrained from using the property for commercial purposes.

Vide interim order dated 21.10.2022, it was directed as

under :

"Till next date of the hearing, both the parties shall maintain status quo regarding house in question. However, it is made clear that the respondents shall not allow the property to be used for commercial purposes and the same shall not be let out to any person."

Arguments qua the above mentioned order dated

21.10.2022 have also been raised by learned counsel for the

[2023/RJJD/004944] (5 of 12) [CMA-1418/2022]

respondents with the submission that while directing to maintain

status quo regarding the house in question, the Court ought not to

have restrained them from using the property for commercial

purposes and from letting it out to any person as either status quo

could have been maintained or the restraint order could have been

put into operation. Both could not have operated simultaneously.

Learned counsel Mr. O.P. Mehta and Mr. Muktesh Maheshwari,

appearing for the appellants submitted that the learned Trial Court

has exceeded its jurisdiction in permitting the defendants to raise

construction and to let out the property while passing an ad

interim order. It has been submitted that the learned Trial Court

was not finally deciding the application for temporary injunction

under Order XXXIX Rule 1 & 2, CPC and therefore, could not have

granted reliefs vide the ad interim order which ultimately

amounted to the final reliefs. Learned counsel further submitted

that so far as the Order impugned permits the defendants to use

the property in the nature and manner it was being used till that

date, the plaintiff cannot and is not aggrieved of the same but the

further permission to raise construction and let it out were clearly

in excess of jurisdiction.

It has further been submitted by learned counsel for the

appellants that after passing of the order impugned dated

05.05.2022, the defendants, in the garb of the order dated

05.05.2022, have put the residential house to commercial use

which is totally in contempt of the order dated 05.05.2022

whereby they were permitted to use the property only in the

manner and nature the same was used till that date. Learned

counsel further submitted that this Court, in appellate jurisdiction,

[2023/RJJD/004944] (6 of 12) [CMA-1418/2022]

is very well within its authority and competence to pass

appropriate orders to restrain the defendants from commercial

user of the property which is an act subsequent to the order

impugned. In support of their submissions, learned counsel relied

upon a decision of the Hon'ble Apex Court rendered in the matter

of Rameshwar and Others Vs. Jot Ram and Others; AIR

1976 SC 49.

Learned counsel for the appellants further submitted that

admittedly the plaintiff as well as the defendants are the

coparceners and it is the settled proposition of law that each and

every coparcener is the joint owner of unpartitioned property and

further that none of the coparceners can be permitted to change

the nature of the property. Admittedly, the suit property is a

residential house which has illegally been put to commercial use

by the defendants and therefore, the said act of the defendants

deserves to be curtailed. It has also been submitted that the issue

of commercial user of the property was nowhere in consideration

before the learned Trial Court on 05.05.2022 and therefore, the

said fact was not taken into consideration. Admittedly, the

commercial user of the property has been pleaded by the

respondents also for the first time before this Court in reply to the

stay petition only and therefore, the said fact deserves

consideration by this Court.

Per contra, learned Senior Counsels Mr. Bharat Vyas and Mr.

Vikas Balia appearing for the respondents no.1 to 4 submitted that

this Court cannot go into the question of commercial user of the

property as no relief qua the same has been prayed for in the

present appeals. Learned counsel submitted that the Court cannot

[2023/RJJD/004944] (7 of 12) [CMA-1418/2022]

travel beyond the relief prayed for by the party and therefore, in

absence of any relief qua commercial user of the property, this

Court is not required to go into the said issue. Further, the said

issue was not raised before the learned Trial Court and therefore

also the same cannot be taken into consideration at this appellate

stage.

On the factual aspect, learned senior counsel submitted the

property had been put to commercial use even before filing of the

suit and therefore, the commercial use of the property is totally in

consonance with the order dated 05.05.2022 whereby the learned

Trial Court has permitted the defendants to use the property in the

nature and manner it was being used till that date. So far as the

reliefs of raising construction and letting out the property is

concerned, learned counsel submitted that it is clear even from a

perusal of the Commissioner Report, called for by the learned Trial

Court subsequently, that no new construction has been raised on

the suit property. Only renovation and modification had been

made for the purposes of commercial use. Learned Senior Counsel

Mr. Bharat Vyas further submitted that he is under instructions to

give an undertaking that till the disposal of the temporary

injunction application, no new construction would be raised by the

defendants on the said property and the same would not be let

out to any one. With the said submissions, learned counsel prayed

for rejection of the present appeals.

Heard learned counsel for the parties and perused the

material available on record.

A bare perusal of the order impugned makes it clear that the

same was an ad interim order passed on the very next date of the

[2023/RJJD/004944] (8 of 12) [CMA-1418/2022]

filing of the suit. Admittedly, till that date, no reply whatsoever

was filed by the defendants and it was only the oral arguments

which were led before the learned Trial Court. The prayer made

by the plaintiff in his temporary injunction application were as

follows :

"vr% izkFkZuk i= is'kdj fuosnu gSa fd nkSjkus lquokbZ okn vLFkkbZ fu"ks/kkKk cgd izkFkhZ fo:) vizkFkhZ la[;k 1 ls 4 bl vk'k; dh lkfnj QjekbZ tkosa fd vizkFkhZ la[;k 1 ls 4 okn i= ds in la[;k 7 o 9 esa of.kZr la;qDr vfoHkkftr vpy lEifRr;ksa dks fdlh Hkh izdkj ls [kqnZ cqnZ] cspku] eqUrfdy] gLrkUrj.k ugh djs] u gh fdlh izdkj dk fuekZ.k] ifjorZu] ifjo/kZu djsa] u gh fdlh cSad foRrh; laLFkku esa fxjoh] vMk.ks] Hkksxykos j[ks vkSj mijksDr lEifRr;ksa dks fdlh vU; dks fdjk;s ij ugh ns o bldk dCtk ikVZ foFk o vU; fdlh Hkh rjhds ls fdlh vU; fdlh O;fDr] l[l laLFkk dks lqiqnZ ugha djsa vkSj cxSj okf.kfT;d :ikUrj.k djok;s bl tk;nkn o blds fdlh Hkh Hkkx dk okf.kfT;d mi;ksx miHkksx ugha djsa vkSj mijksDr lEifr;ksa dh fLFkfr ;Fkkor cuk;s j[ksaA blh izdkj okn i= ds in la[;k 9 ls 23 esa of.kZr la;qDr vfoHkkftr py lEifr;ksa dks Hkh vizkFkhZ la[;k 1 vFkok vizkFkhZ la[;k 2 ls 4 ukWfeuh vFkok la;qDr uke fy[kokus ds dkj.k fdlh Hkh izdkj ls [kqnZ cqnZ ugha djsa] vkSj u gh dksbZ py lEifr cSad ;k foRrh; laLFkk ls izkIr djsa vkSj u gh dksbZ py lEifr fdlh Hkh izdkj ls fdlh ds i{k esa gLrkUrfjr djsa vkSj u gh mDr la;qDr vfoHkkftr py lEifr;ksa ls fdlh Hkh izdkj dh dksbZ jkf'k izkIr djsaA vU; mfpr vkns'k tks izkFkhZ ds i{k esa gks lkfnj Qjek;k tkosaA"

As observed above, no reply to the temporary injunction

application was filed by that date nor was any counter claim

preferred on behalf of the defendants. Therefore, the court was

only required to consider whether the interim relief as prayed for

by the plaintiff could have been granted on the said date may be

in form of an ad interim order. The said ad interim relief was only

to be granted till the disposal of the application for temporary

injunction preferred under Order XXXIX Rule 1 & 2, CPC. A perusal

[2023/RJJD/004944] (9 of 12) [CMA-1418/2022]

of the order impugned shows that the learned Trial Court has

proceeded on to pass the same as if it was deciding the temporary

injunction application finally. The reliefs as granted have been

mentioned to be till the final disposal of the suit which, in the

opinion of this Court, could not have been granted. The ad interim

relief can only be granted till the final disposal of the temporary

injunction application and not till disposal of the suit. Moreover,

the reliefs as granted regarding the permission to raise

construction and further to let out the property too, in the opinion

of this Court, could not have been granted at the ad interim stage

and that too, without there being any prayer for the same on

behalf of the defendants. A perusal of the reliefs as granted makes

it clear that the same amounts to the final reliefs being granted

with the presumption as if no hearing on the temporary injunction

application is to be taken up.

Further, a perusal of the order impugned also reveals that

the same is self-contradictory and therefore also, cannot be

upheld. On the one hand, the learned Trial Court has proceeded

on to restrain the defendants from creating any third party rights

in the suit property and on the another hand, permitted the

property to be let out. The said two directions are totally

contradictory as letting out the property essentially means

creating third party rights in the property.

Further, the learned Trial Court has proceeded on to direct

that if the property is let out, the tenant would be entitled to the

tenancy rights whatsoever only till disposal of the present suit. In

the specific opinion of this court, firstly the said order is clearly in

excess of jurisdiction as no tenant can be bound by any order in a

[2023/RJJD/004944] (10 of 12) [CMA-1418/2022]

proceeding wherein he/she is not a party. Secondly, any tenant

would not be governed by the Civil Court and therefore too, his

rights cannot be curtailed by an order passed in some proceedings

between two parties to which he is a stranger.

Further, it is clear on record that till the date of passing of

the order dated 05.05.2022, the property was not let out to any

one and by the order impugned, rather an extra right/privilege has

been granted to the defendants which was not even prayed for by

them. The said order, that too at ad interim stage, is clearly in

excess of jurisdiction and therefore, cannot be upheld by this

Court.

So far as the issue of commercial use of the suit property is

concerned, it is crystal clear from a perusal of the reply to the stay

petition as preferred by the respondents in the present appeal that

the commercial user of the property has been undertaken after

passing of the order impugned i.e. 05.05.2022. Admittedly, the

Hawan Pooja was done on 19.08.2022, trials and soft launch were

undertaken in first week of September 2022 and the opening of

the restaurant was held on 26.09.2022. The Commissioner Report

of 10.05.2022 reveals that repair/renovation work was being

undertaken in the premises but no commercial activity has been

mentioned or taken note of.

Admittedly, a prayer to restrain the defendants from

commercial use of the suit property has been made in temporary

injunction application which was apprehended by the plaintiffs on

that date. But as is clear from the record, till that date, the

commercial use of the property had not been undertaken in effect

by the defendants and therefore, the relief qua the same seems

[2023/RJJD/004944] (11 of 12) [CMA-1418/2022]

not to have been considered by the court at that ad interim stage.

The commercial user of the property is definitely a subsequent

fact. On the date when the order impugned dated 05.05.2022

was passed, the property had not been put to commercial use in

effect and therefore, the commercial user of the property after

passing of the order dated 05.05.2022 is clearly in defiance of the

order impugned dated 05.05.2022 which permitted the defendants

to use the property in the manner and nature it was being used

prior to that date. But then, firstly, this Court is not in contempt

jurisdiction and secondly, although argued, no relief regarding the

said user has been prayed for in the present appeals even by any

subsequent application or amendment in the original appeal.

There is no dispute on the proposition of law that subsequent acts,

if any, may be taken into consideration by the appellate Court

while deciding the issues of prima facie case and balance of

convenience. But then, the subsequent acts have to be pleaded

and a relief qua the same has to be prayed for. The prayer as

made in the present appeals is only for setting aside the impugned

order to the extent it granted permission to the defendants to

raise construction and to let out the property. So far as these two

reliefs are concerned, as held in the preceding paras, the findings

of the learned Trial Court to said extent cannot be upheld being in

excess of jurisdiction. Moreover, learned counsel for the

respondents has also undertaken not to raise any construction or

to let out the property till the final disposal of the temporary

injunction application.

Before summing up, it is essential to clarify that the

judgments as cited at Bar have not been taken into consideration

[2023/RJJD/004944] (12 of 12) [CMA-1418/2022]

by this Court because of the facts, firstly, the learned counsel for

the respondents have themselves undertaken not to raise any

construction or let out the suit property till the final disposal of the

temporary injunction application and secondly, the Court has not

entertained the present appeals qua any relief over and above the

above mentioned two reliefs.

In the totality of the facts, leaving the issue of the

subsequent commercial use of the property to be pleaded and

agitated before the learned Trial Court, the impugned order dated

05.05.2022 is set aside to the extent it permits respondents No.1

to 4 to raise construction on the suit property or to let it out. Qua

the other reliefs, the same is upheld.

Accordingly, the appeals stand disposed of.

The stay applications and all the pending applications also

stand disposed of.

(REKHA BORANA),J Vij/-

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