The central legal point established in the judgment is the significance of prima-facie case, balance of convenience, and irreparable loss in the grant of temporary injunction.

ORDER :

Heard learned counsel for the petitioner at motion stage.

The petitioners/defendants have filed present petition under Article 227 of the Constitution of India against the impugned order dated 18/08/2021 passed by the 4th Additional District Judge, Indore in Miscellaneous Civil Appeal no. 50/2021, whereby the said appeal under Order 43 Rule 1 of CPC filed by the respondent/plaintiff has been allowed and the temporary injunction has been granted in favour of the respondent/plaintiff.

2. Facts of the case in brief are that the respondent/plaintiff filed a civil suit seeking declaratory relief praying that house no. 36/1, Kachhi Mohalla, Indore ( in short “ the suit property”) is an ancestral property of the plaintiff and the defendants. it should be declared that respondent/plaintiff is using the shop situated in the suited property since the lifetime of his father and is the only source of earning of the family. It is also prayed that petitioner/defendants in suit may be injected from disturbing or alienating the suited property. Respondent/plaintiff has also filed an application under Order 39 Rule 1 and 2 of CPC, seeking temporary injunction on petitioners/defendants. After hearing both the parties, 5th Civil Judge, Class-II, Indore vide order dated 06/07/2021, dismissed the application, therefore, the respondent/plaintiff moved an appeal against the said order before the 4th ADJ, Indore, wherein vide order dated 18/08/2021, directed temporary injunction on sale and alienation of suited house in favour of the respondent/plaintiff, Hence, present petition has been preferred before this Court by the petitioners/defendants.

3. Learned counsel for the petitioners contended that the impugned order is prima facie illegal, arbitrary and perverse and suffers from jurisdictional error apparent on the fact of record. Learned Appellate Court has grossly committed error in law and facts while passing the impugned order. By reversing the order passed by the Appellate Court in contravention of settled legal principle that discretion once exercised should not be interfered. Prima-facie case, balance of convenience and irreparable loss, all these ingredients are in favour of the petitioners/defendants and the plaintiff has no right over the suit property. Under these circumstances, learned counsel prays for setting aside the impugned order.

3. Nobody appeared on behalf of the respondent/plaintiff despite service of notice.

4. Heard learned counsel for the petitioner at length and perused the relevant documents available on record.

5. On perusal of the documents filed by the petitioners, it appears that the plaintiff and defendant nos. 2 to 6 are real brothers and sons of Late Nathulal Shahu, who executed a WILL in the year 2011. According to the WILL, Late Nathulal Shahu partitioned his entire immovable property and divided it into all his sons, which he had purchased from Shahu Nagar Grih Nirman Sahakari Sanstha, Indore through registered sale deed. The WILL executed by Late Nathulal Shahu clearly demonstrate that the family partition is already recorded, wherein Late Nathulal Shahu has given self-acquired property to the respondent clarying that the respondent will not have any right in the suit property. The respondent Rajendra Kumar Shahu did not file any relevant document to prove his contention that he is the owner of the Annapurna Aata Chakki and he is running the Aata Chakki since last 30 years. He did not produce any certificate of shop and establishment department, electricity bill or receipt of tax property regarding the suit property. In absence of the above material evidence, prima-facie case is not found in favour of the respondent/plaintiff.

6. In absence of prima-facie case, if the temporary injunction is granted in favour of the respondent/plaintiff, then the petitioners/defendants will suffer such a irreparable loss, which cannot be compensated in terms of money, therefore, prima-facie case, balance of convenience and irrep