1983 Supreme(MP) 622

IN THE HIGH COURT OF MADHYA PRADESH
B.C. VARMA, J.
Mohan - Applicant
Vs.
Narain - Respondents
C.R. No. 377 of 1982 (G)
Decided On : 21-01-1983

Headnote:(1) Civil Procedure Code, 1908 – O. 39, R. 1 and 2 – prima facie case – when established – plaintiff submitting document showing his title – also raising triable question – prima facie case established.

       (2) Civil Procedure Code, 1908 – O. 39, R. 1 and 2 – undertaking for allowing construction – acceptance of – some construction raised during pendency of suit – plaintiff also not personally interested and not going to suffer any injury – undertaking not acceptable.

        Short Note

       1. This revision by the plaintiff applicants is directed against the dismissal of their application for temporary injunction.

       Held : The Courts below have come to a conclusion that the plaintiff applicants could not demonstrate a prima facie case in their favour. It is also their finding that the applicants will not suffer any irreparable injury if the injunction was refused. In my opinion, the Courts below have completely gone wrong in arriving at a conclusion that the applicants could not demonstrate a prima facie case. The material documents, which have been exhibited on record by the applicants, have been ignored. The applicants have stated that the property first belonged to Mst. Bithola and Mahadevi. They, however, claimed the suit property under an agreement from these two ladies. They got their names mutated against this suit property and have further stated that they have built rooms on a part of it and permitted the non – applicants to occupy one of those rooms. Their case is that upon the open piece of land lying in – front of the rooms the non – applicants had started excavation intending to raise structure thereon. In my opinion the averments, so made and the documents filed, do raise the question to be tried and, therefore, I am of the opinion that the applicants have been able to establish a prima facie case in their favour.

       2. I am further of opinion that the balance of convenience shall lie in maintaining the status quo. The learned counsel for the non – applicants argued that all that now remains to be done is to repair a stair case and a wall which has fallen down during the last rains. Photographs have been exhibited to support this contention. The learned counsel also gave an undertaking on behalf of the non – applicants that in case the applicants ultimately succeed in their suit, the non – applicants shall remove the structure without claiming any compensation therefor.

       3. Usually, under such undertaking being given, the structure is permitted to be raised and I would have also done so. However, in the peculiar circumstances of the case, I am of the opinion that it would be just and proper to maintain the status quo as it obtains today. This is so because the applicant's contention is that the structure, now existing, has been raised only during the pendency of this suit. It appears that the non – applicants need the building only for the use as a 'Ashram' for imparting religious education. The non – applicants will also thus suffer no injury if the structure is allowed to remain as it is and no further construction is done. Revision allowed.