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ALLAHABAD HIGH COURT
Satyendra Singh Chauhan, Anil Kumar, JJ.
Sushila Suri - Appellant
Versus
Susheel Suri and Ors. - Respondent
First Appeal From Order No. 828 of 2015
Decided On : 16-08-2016
Injunction - Property Dispute - Indian Evidence Act, 1872, Indian Succession Act - The court discussed the legal provisions of temporary injunction and the conditions for its grant, including prima facie case, balance of convenience, and irreparable injury. The court emphasized the need for a strong prima facie case and balance of convenience in favor of the plaintiff. The court also highlighted the importance of proving irreparable injury to obtain an injunction. The judgment referred to various legal precedents to support the decision to set aside the injunction order.
Fact of the Case:
The case involved a property dispute between family members over the estate left by the deceased. The plaintiff sought injunction and partition of the properties, while the defendant claimed exclusive title and possession over the properties. The trial court had granted a temporary injunction in favor of the plaintiff, which was challenged in the appeal.
Finding of the Court:
The court found that the plaintiff did not have a strong prima facie case or balance of convenience in their favor. It emphasized that the plaintiff had neither title nor possession over the properties in question, and the injunction order was contrary to law. The court also directed the trial court to decide the suit in accordance with the law.
Issues: The main issues revolved around the grant of temporary injunction, the plaintiff's prima facie case, balance of convenience, and the maintainability of the suit for partition without seeking a relief for declaration.
Ratio Decidendi: The court emphasized the importance of proving a strong prima facie case, balance of convenience, and irreparable injury to obtain a temporary injunction. It highlighted the need for the plaintiff to have title and possession over the properties in question. The court also emphasized the duty of the trial court to decide the suit in accordance with the law.
Final Decision: The court set aside the injunction order and allowed the appeal, directing the trial court to decide the suit in accordance with the law.
Anil Kumar, J. –
Heard Sri. S.K. Kalia, Senior Advocate assisted by Sri. Daya Shankar Tripathi, learned counsel for appellant, Sri. R.N. Gupta, learned Senior Counsel assisted by Sri. Pritish Kuamr for respondent No. 1 Sri. Abhinav Singh learned Counsel holding brief of Sri. Gaurav Mehrotra for respondent No. 2 and Sri. Anil Kumar Tiwari, learned Senior Counsel assisted by Sri. Prakhar Misrha, for the respondent Nos. 4 & 5.
2. By means of the present appeal, the appellant/defendant has challenge the order dated 26.08.2015 passed in Regular Suit No. 342 of 2015 (Dr. Susheel Suri v. Harish Suri & Ors.) by Civil Judge (Sr. Div.), Lucknow.
3. Facts in brief of the present case are that Sri. Govind Ram Suri (now deceased) was the owner of the properties, details of which is given herein below: -
A. Land measuring 11032 Sqft. of Khasra Plot No. 146 and 147 situated at Village Gazipur Saidul Nisha Pargana Tehsil and District Lucknow presently known as Indira Nagar, Lucknow
B. Khasra Plot No. 11/CP-1 situated at Sector-11 Vikas Nagar, Lucknow comprising area 1938.96 Sqmtr or 21000.00 sqft.
C. Property situated at 4A-Faizabad Road, behind Central Bank of India, Lucknow.
4. Out of the wedlock of Sri. Govind Ram Suri and appellant Smt. Sushila Suri, they were blessed with five children, two sons and three daughters, details of whom are as under: -
1. Smt. Pravesh Kumari
2. Smt. Praveen Bhasin
3. Smt. Pramod Bahari
4. Sri. Harish Suri
5. Dr. Susheel Suri
5. On 11.06.2004, Sri. Govind Ram Suri had executed a will in respect to the properties in question in favour of his wife Smt. Sushila Suri and on 24.10.2011 he died.
6. In the year 2012, Smt. Sushila Suri filed a suit for declaration registered as Regular Suit No. 223 of 2012 (Smt. Sushila Suri v. Gaurav Suri) in the Court of Civil Judge, Lucknow. In the said suit, the children of late Govind Ram Suri were not made party by her on the ground that she is being absolute owner and in possession of estate left behind by her husband late Sri. Govind Ram Suri.
7. On behalf of Dr. Susheel Suri, an application for impleadment was moved and when the same was pending for consideration on 06.08.2012, the said suit was dismissed for want of prosecution.
8. On 18.10.2012, Dr. Susheel Suri filed a suit for permanent injunction in the Court of Civil Judge, (Sr. Div.), Lucknow, registered as Regular Suit no. 1364 of 2012 (Dr. Sushil Suri v. Harish Suri and others) with the following main relief: -
"(i) A decree for permanent injunction be passed in favour of plaintiff against the defendants restraining the defendants from selling, alienating or transferring the property morefully describe in para 2 of the plaint or to creat any third party right in property in suit."
9. In the said suit, an application under Order 39, Rule 1 & 2 CPC has been moved by Dr. Susheel Suri to which an objection has been filed by appellant/Smt. Sushila Suri, thereafter on the consent of parties, the trial court has granted a temporary injunction order in favour of the plaintiff/Dr. Susheel Suri thereby restraining the defendants from alienating and transferring the properties in dispute and creating any third party interest.
10. On 06.03.2014, defendant/Smt. Sushila Suri moved an application for recording her statement under Order 18, Rule 16 read with Order 18, Rule 19 and Order 26, Rule4 CPC. The same was contested by the plaintiff/Dr. Susheel Suri and was allowed by an order dated 16.04.2014 which was challenged by Dr. Susheel Suri by filing Civil Revision No. 50 of 2014 before this Court and on 08.05.2014, this Court has dismissed the same, the operative part of the same reads as under: -
"The Court after going through the judgment and hearing both the parties is convinced that the order passed by lower court is perfectly right because all the facts and the law on the subject have been considered. It is not a judgment in which any interference can be shown by this Court. The revision being devoid of merits and misconceived is accordi
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