1991 Supreme(MP) 553

IN THE HIGH COURT OF MADHYA PRADESH
A.G. QURESHI, S.D. JHA, JJ.
Jagdish Prasad – Appellant
V.
Nagar Palika Parishad, Jeerapur – Respondent
M.P. No. 926 of 1990 (I)
Decided on : 13-08-1991

Headnote:Civil Procedure Code, 1908 – – O.39, R.1 and 2 – – relief sought in suit becoming infructuous by efflux of time – – temporation injunction to remain in possession thereafter cannot be granted.

        Short Note

       1. This petition has been directed against the respondents seeking the direction for quashing of Annexure – P.15 of the petition, an order passed by the learned District Judge, Rajgarh (Biaora) in Civil Misc. Appeal No.2 of 1988 on 18th July, 1990.

       2. The facts leading to this petition, in short, are that a piece of land measuring 6 x 4 metre, bearing survey No. 1339, in patwari Halka No. 30 at Jeerapur is in the possession of the petitioner on the basis of an annual lease granted by the S.D.O. Rajgarh to the petitioner whereon he was running a hotel. The defendant No.1, Nagar Palika Parishad, Jeerapur had served a notice on the petitioner plaintiff to remove the encroachment. Therefore, he filed a suit before the Court of Civil Judge, Class I, Khilchipur seeking an injunction against the defendants. The suit was registered as C.S. No. 133 – A of 87. He also filed an interim application I.A. No.1 on 1.10.1987 under order 39, Rules 1 and 2, C.P.C. The interim application was dismissed by the Civil Judge, Class I, aggrieved by which the petitioner filed an appeal before the learned District judge which was registered as C.M.A. No.2 of 89 and was dismissed, vide order dated 18th July, 1990. Hence, this miscellaneous petition.

       3. Held: The learned counsel for the petitioner Shri Kshirsagar argues that the order passed by the learned District Judge is erroneous because the learned District Judge has not taken into consideration the fact that possession of land from a person cannot be taken forcibly even if it is an encroachment. The encroachment has to be removed after adverting to the due process of law. In the instant case, however, it is actually a lease under which the petitioner is in possession of the land in question.

       4. In our opinion this argument is without any force. This petition has been filed seeking an interim relief during the pendency of a civil suit.

       5. In the civil suit the relief which has been sought by the petitioner is a declaration against the defendants that the petitioner should not be dispossessed from the land in question for a period of three years and that the plaintiff be allowed to keep the possession of the land in question for a period of 3 years peacefully. The suit was filed on 1.10.1987 and the period of three years had already elapsed. Therefore, according to the impugned relief sought in the suit itself the petitioner cannot claim the possession of the suit land after that period for which he had filed the suit. As such the prayer for the issuance of an injunction order has become infructuous by efflux of time. Therefore, without going into the merits of the matter we find that this is not a fit case wherein the extra – ordinary powers of this Court under Arts. 226 and 227 of the Constitution can he invoked.

       6. The petition is, therefore, dismissed with no orders as to costs.