Ramniwas vs Rukmani Bai - 1986 Supreme(MP) 420

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : R. D. Jain and R.C. Lahoti
For the Respondent: M.M. Kaushik

Headnote:(1) Civil P C, 1908 – O.39, R. 1 and 2 – plaintiff not in possession of suit property – no temporary injunction can be granted in his favour.
       (2) Civil Procedure Code, 1908 – O. 40, R. 1 – application for appointment of receiver – suit as filed not In maintainable – no receiver can be appointed on prayer of plaintiff.
        Short Note
       1. The respondent No. 1 sued the appellant and the respondent No.2 for declaration of his alleged title to certain immovable and movable properties and for perpetual injunction restraining the defendants from interfering therewith. An application for grant of a temporary injunction and another for appointment of a receiver were also filed by him. Both the applications were allowed by the trial Court by order dated 12 – 9 – 1986. Being aggrieved thereby, the appellant has flied this miscellaneous appeal under Order 43, Rule 1 (r) (5) of the Code of Civil Procedure.
       Held : Admittedly, the respondent No.1 is not in possession of any property forming the subject matter of the suit. That being so, the suit for mere declaration would not be maintainable and so also the claim for perpetual injunction. It follows that the respondent No.1 does not have a prima faice case. The learned counsel for the respondent No. 1 submits that an application for amendment of the plaint also would be filed on behalf of the respondent No. 1 and, therefore, the temporary injunction may be allowed to continue at present, lest the appellant may alienate the property in suit in the meantime. The learned council for the appellant gives an undertaking on behalf of the appellant that the appellant shall not alienate any of the properties in suit for a period of three months from today. The learned counsel for the respondent No.1 has no objection to this undertaking given on behalf of the appellant.
       2. In the view that the respondent No. 1 does not have prima facie case presently, the appeal must be allowed. Accordingly, the appeal is allowed and the impugned order is set aside. The respondent No.1 is at liberty to apply for suitable amendment of the plaint as above and to apply afresh for a temporary injunction or/and appointment of receiver after suitable amendment of the plaint, if so advised. Appeal allowed.