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2019 Supreme(MP) 420
IN THE HIGH COURT OF MADHYA PRADESH
Rohit Arya, J.
Suman Chouksey (Smt.) v. Dinesh Kumar & Others
Miscellaneous Appeal No. 5456 of 2018 (Indore): against the order dated 19.11.2019 passed by by the VIII Additional District Judge, Ujjain in Civil Suit No. 3A/2018; Decided on 4.10..2019
V. K. Jain with Vaibhav Bhagwat for appellant; M. K. Jain for respondents.
Headnote:
(1) Civil P. C., 1908 -- O. 39 Rr. 1 and 2 -- three-fold principle for grant of interlocutory injunction -- prima facie case, balance of convenience and irreparable injury. [Para 5]
(2) Civil P. C., 1908 -- O. 39 Rr. 1 and 2 -- principles for grant of interlocutory injunction -- unless material available to Court at hearing of application for interlocutory injunction fails to disclose that plaintiff has any real prospect of succeeding in his claim for permanent injunction, Court should go on to consider whether balance of convenience lies in favour of granting or refusing interlocutory relief. 1978 MPLJ 419 relied on. [Para 9]
(3) Civil P. C., 1908 -- O. 43 R. 1 (r) and O. 39 Rr. 1 and 2 -- appeal against order under O. 39 Rr. 1 and 2 -- trial Court essentially exercises discretionary jurisdiction under O. 39 Rr.1 and 2 -- unless discretion so exercised suffers from perversity of approach or is vitiated by glaring errors of fact or law, or is capricious or palpably perverse, appellate Court normally should not interfere with exercise of jurisdiction in appeal if other view was possible. 1990 (Supp.) SCC 727 and (2006) 5 SCC 282 followed. [Para 11]
¼1½ flfoy ÁfØ;k lafgrk] 1908 & vkŒ 39 fuŒ 1 ,oa 2 & varoZrhZ O;kns'k ds Ánku ds fy, frgjk fl)kar & ÁFken`"V~;k ekeyk] lqfo/kk dk iyM+k rFkk viwj.kh; {kfrA ¼iSjk 5½
¼2½ flfoy ÁfØ;k lafgrk] 1908 & vkŒ 39 fuŒ 1 ,oa 2 & varoZrhZ O;kns'k ds Ánku ds fy, fl)kar & tc rd varoZrhZ O;kns'k ds fy, vkosnu dh lquokbZ ds le; U;k;ky; dks miyC/k lkexzh ls ÁdV ugha gks fd oknh ds LFkk;h O;kns'k ds nkos esa lQy gksus dh ;FkkFkZ laHkkouk gS] rc rd U;k;ky; dks og fopkj djuk gh pkfg, fd lqfo/kk dk iyM+k varoZrhZ O;kns'k Ánku djus ds i{k esa Hkkjh gS ;k mlls bUdkj djus ds i{k esaA 1978 ,e ih ,y ts 419 voyaforA ¼iSjk 9½
¼3½ flfoy ÁfØ;k lafgrk] 1908 & vkŒ 43 & fuŒ 1 ¼n½ rFkk vkŒ 39 fuŒ 1 ,oa 2 & vkŒ 39 fuŒ 1 ,oa 2 ds v/khu vkns'k ds fo#) vihy & vkŒ 39 fuŒ 1 ,oa 2 ds v/khu fopkj.k U;k;ky; lkjr% oSosfdd vf/kdkfjrk Á;qDr djrk gS & tc rd bl Ádkj Á;qDr vf/kdkfjrk n`f"Vdks.k dh foi;ZLrrk ls xzLr ugha gks vFkok rF; ;k fof/k dh lqÁdV xyfr;ksa ls nwf"kr ugha gks] vFkok vuqfpr ;k ÁR;{kr% foi;ZLr ugha gks] rc rd vihy esa lekU;r% vihy U;k;ky; dks vfËkdkfjrk ds Á;ksx esa ek= blfy, gLr{ksi ugha djuk pkfg, fd vU; n`f"Vdks.k laHko FkkA 1990 ¼lIyhŒ½ ,l lh lh 727 rFkk ¼2006½ 5 ,l lh lh 282 vuqlfjrA ¼iSjk 11½
ORDER
Arya, J.--1. This miscellaneous appeal under Order 43 rule 1(r) CPC is directed against the order dated 19.11.2019 passed in civil suit No. 3A/2018 by Eighth Additional District Judge, Ujjain allowing application under Order 39 rule 1 and 2 CPC granting temporary injunction in favour of the plaintiffs.
Suit for declaration that sale deeds dated 28.3.2010 (Annexure A/3) and 18.3.2011 (Annexure A/6) allegedly executed by defendant No. 3 (power of attorney holder of plaintiffs) in favour of defendant No. 1 are null and void & not binding on the plaintiffs and permanent injunction restraining defendants No. 1 to 3 from interfering with the possession and forcible dispossession of the plaintiffs is pending consideration.
2. Pleadings in the plaint for the purpose of this appeal in nutshell are as follows:
(i) plaintiffs are residents of Indore and the suit land is situated in district Ujjain;
(ii) plaintiffs and defendant No. 2 are wellknown to each other since the time of plaintiffs' father was alive (died on 23.12.2010) who was in the business of real estate and on many occasions developed land, divided into plots and sold to individuals in association with defendant No. 2;
(iii) defendant No. 3 is stated to be servant of defendant No. 2;
(iv) during life time, Jayaramji Kashya had also executed a power of attorney in favour of defendant No. 3 for the purpose of division of plots and execution of sale deeds, etc., He was a trusted person of the family;
(v) agricultural land admeasuring 1.390 hectare and 0.760 hectare falling in survey No. 265 & 266/1 respectively situated in village Pingaleshwar tehsil and district Ujjain are of the ownership of the plaintiffs duly recorded in the revenue record in respect whereof on suggestion of defendant No. 2 two power of attorneys were executed by plaintiffs in favour of defendant No. 3 on 10.9.2009 (Annexure A/1) and 28.1.2011 (Annexure A/2). The description of properties in both the power of attorneys are same and covered the entire land; the suit land;
(vi) plaintiffs had filed suit for injunction being suit No. 89A/2010 before the civil Court against Wahid and Wazid sons of Abdul Aziz having apprehension of unwanted and illegal interference with the possession of the suit land. On the suggestion of defendant No. 2, Shri Manish Manana, Advocate was engaged as counsel for the plaintiffs;
(vii) defendant No. 2 in his evidence on affidavit dated 10/08/2010 in the aforesaid suit has supported the case of plaintiffs that they are in possession of the entire suit land for grant of temporary injunction. Advocate Shri Manish Manana had identified defendant No. 2. Plaintiff No. 1's evidence was also prepared by Advocate Shri Manish Manana and his associates on 22.12.2010 and the plaintiff was cross-examined on 2.12.2011 Thereafter, he was assured by the counsel that he would not be required in day to day hearing and shall be communicated as and when his presence was required;
(viii) plaintiffs pleaded that they did not authorize defendant No. 3 to execute the sale deeds dated 28.3.2010 (Annexure A/3) and 18.3.2011 (Annexure A/6) in favour of defendant No. 1. The sale deeds so executed by him were without their knowledge and consent. No consideration amount has been received. Defendant No. 3 has fraudulently executed the sale deeds;
(ix) defendants No. 1 and 2 did not disclose the sale deeds dated 28.3.2010 (Annexure A/3) and 18.3.2011 (Annexure A/6) to the plaintiffs at any time prior to the year 2013, firstly; before filing the application dated 10.1.2013 under Order 7 rule 11 CPC seeking dismissal of civil suit No. 51A/2012, on the premise that the sale deed dated 18.3.2011 (Annexure A/6) part of the suit land since has been transferred in favour of defendant No. 1, nothing survives in the instant suit and secondly, filing an application by defendant No. 1 for substitution of her name in place of the plaintiffs before the Tehsildar in the year 2013.
The plaintiffs were taken surpri
