Rajpal Singh vs Mithilesh Gupta - 1990 Supreme(MP) 573

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : K.B. Chaturvedi.
For the Respondent: T.C. Bansal.

Headnote:Civil Procedure Code, 1908 – O. 39 R. 4, S. 151 and O. 43 R. 1 – discretionary jurisdiction of modification – injunction order based on good reasons – no interference in appeal is called for.
        Short Note
       1. Both the parties prayed for maintenance of the status quo, so far as possession was concerned.
       2. On 7.10.1987 the Court passed a consent order extending the duration of the order dated 2.5.1986 till the disposal of the suit.
       3. On 1.2.1988, the defendants made an application under O. 3 R. 4 read with section 151 CPC praying for modification \of the aforementioned order because her material worth thousands was lying about in the land in dispute and was being damaged by rains and some material had been stolen. The prayer was made for construction of a brick boundary wall around the land in dispute and for raising a tin shed over it.
       4. The Court granted the relief to defendant No. 1 conditionally upon her filing an undertaking that the boundary wall and the tin shed shall be removed by her at her own costs and she shall not make any claim in respect of the expenses.
       5. Aggrieved by the order, the plaintiff has filed the present appeal under O. 43 R. 1 CPC.
       6. The learned Judge granted the relief keeping in mind that there was a registered sale – deed in favour of defendant No. 1 and that the plaintiff's Mukhtiyar am Smt. Shantabai had admitted in her complaint dated 24.3.1984 to the Additional District Magistrate, Gwalior that the present defendant No. 1 husband Ratanlal had enclosed the land in dispute with angle irons and had put up a tarpaulin shed and had kept the material and machinery required for preparation of steel almirahs on the site in question.
       7. However, what moved the Court in modifying the earlier order was the undertaking given by defendant No. 1. After all it was the matter which was to be disposed of in a discretionary jurisdiction and good reasons were given for the same.
       8. The appellant's learned counsel has relied on Gangubai vs. Sitaram, AIR 1983 SC 742. There a suit for declaration of a title and for permanent injunction was filed in the High Court on the original side and interim injunction was granted to the plaintiffs and then at the instance of the defendants the order was vacated by the learned Single Judge. The plaintiff's appeal before the Division Bench also failed. There on the facts of the case it was found by the Supreme Court that the plaintiffs were in possession and that the defendants were restrained by temporary injunction.
       9. The case before us is one where the suit was pot for a permanent injunction. The plaintiff's Mukhtiyar made a written admission on 24.3.1984 that he was out of actual possession. Hence, the dictum in the Supreme Court's ruling does not advance the case of the present appellant. AIR 1983 SC 742 distinguished. Appeal dismissed.