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HIGH COURT OF MADHYA PRADESH
Ms. Vandana Kasrekar, J.
Mangilal v. Ganpatlal
Miscellaneous Appeal No. 4544 of 2018 (Indore);
against the judgment dated 22.9.2018 passed by the I Additional District Judge, Jaora in Civil Regular Appeal No. 30A of 2018; Decided on 28.2.2019
(2) Civil P. C., 1908 -- Ss.104(1) read with O.43 R.1, 104(2), 107 and O.39 Rr. 1 & 2 -- miscellaneous appeal under section 104(1) r/w O. 43 R. 1 -- shall lie before High Court against order passed by appellate Court under O.39 R. and 2 if appellate Court is hearing appeal from a decree as appeal under section 96 is a continuation of suit -- same consequence shall not ensue if appellate Court is hearing appeal from order -- prohibited by S. 104 (2).
Held : Miscellaneous appeal under section 104 (1) read with Order 43 rule (1) (r) shall be maintainable before the High Court if interim injunction is granted by lower appellate Court in an appeal under section 96 of the Code. However, miscellaneous appeal before High Court shall not be maintainable if order of interim injunction is passed by the lower appellate Court in miscellaneous appeal under section 104(1) read with Order 43 Rule (1)(r), in view of the bar under section 104 (2) of the Code. AIR 1957 SC 540 followed. 1982 (1) (HC) AP Law Journal 73, 1982 (1) (HC) AP Law Journal 495, AAOs No. 288 and 289 of 1977 decided on 25.2.1978 (Madras High Court) and AIR 1976 Mad. 63 relied on. AIR 1975 Mad. 3, AIR 1989 Bom. 68, AIR 1999 Ori. 33, MA No. 638 of 1997 decided on 31.8.1998 (Orissa High Court), AIR 2013 Cal. 231 (FB), 2016 AIR CC 1001 (Ker.) and AIR 2019 Bom. 1 discussed. Civil Appeal No. 4346/2008 decided on 7.7.2008 (Bombay High Court) distinguished. Vasant Ganesh Damle (2002)4 SCC 183 referred to.
(3) Civil P. C., 1908 -- O.39 Rr. 1 & 2, Ss. 104(1) read with O.43 R.1, 104(2) and 107-- temporary injunction -- no prima facie case in favour of appellant -- possession already taken by respondents after passing of decree by trial Court -- interference declined in order passed in appeal whereby application under O.39 Rr.1 & 2 has been rejected. [Para 9
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1. The appellant has filed this appeal against the order dated 22.9.2018 passed by I ADJ, Jaora in civil regular Appeal No. 30-A/2018 whereby the learned Judge has rejected the application filed by the appellant under Order XXXIX rules 1 and 2 of CPC against the respondents.
2. Facts in brief are that on 19.3.2012 plaintiff has purchased a land bearing survey No. 326 ad-measuring 3.08 hectare from one Laxmibai d/o Bhawarlal Patidar and Balram s/o Rameshwar Patidar of Village Hanumantiya. It was further stated that the plaintiff immediately after purchase of the land in question, is in cultivation, possession in respect of the suit land. It has further been averred in the plaint that on 14.7.2012, the respondents No. 1 to 4 came on the suit land and informed the appellant that the suit land has been leasedout to them and they will cultivate it. They further threatened the appellant of dire consequences, therefore, the appellant has filed the civil suit. Respondent after service of summons of the suit filed their written statement and refuted the plaint allegations. Trial Court vide order dated 7.8.2012 allowed the application of the plaintiff filed under Order XXXIX rules 1 and 2 of CPC and granted temporary injunction in favour of the appellant. Being aggrieved by the said order dated 7.8.2012, the respondents preferred a Miscellaneous Appeal before the ADJ, Jaora. The learned Judge vide order dated 7.1.2013 dismissed the appeal filed by the respondents. Being aggrieved by the order, respondents filed a writ petition before this Court, which was registered as Writ Petition No. 808/2013. The said writ petition was dismissed vide order dated 4.9.2013, thereafter the suit filed by the appellant was finally decided on 27.6.2018, however, the trial Court found that the appellant is in possession of the suit land but yet the decree for permanent injunction has not been granted by the trial Court. Being aggrieved by the said judgment and decree, appellant has preferred first appeal before appellate Court and also moved an application for temporary injunction under Order XXXIX rules 1 and 2 of CPC. The application was supported by affidavits. The respondents have filed their reply to the application and opposed the same by contending that on 28.6.2018, they have taken over the possession in presence of the plaintiff. The learned first appellate Court after hearing both the parties and taking into consideration the material placed before him, rejected the application filed by the appellant on the basis of the statement of Ganeshlal that they have taken over possession of the land in question. The appellate Court has held that the sale-deed dated 16.2.2012 is illegal and the plaintiff has not come with clean hands. It has further been held that there is no prima facie case in favour of the plaintiff/appellant and balance of convenience is also not in his favour and if injunction is not granted, he would not suffer irreparable injury. Being aggrieved by the order dated 22.9.2018, the present appeal has been preferred by the appellant.
3. Learned senior counsel appearing on behalf of the respondents raised a preliminary objection that the said appeal is not maintainable in view of the provisions of section 104 (1) of the CPC.
4. Learned senior counsel for the respondents has placed reliance on the judgment passed by Madras High Court in the case of C. Kalahasti v. P.C.M. Chetti [AIR 1975 Mad. 3], Krishan Yashwant Shirodkar v. Subhash Krishna Patil and others [AIR 1989 Bombay 68], Natabar Das v. Braja Kishore Raha and another [AIR 1999 Orissa 33] and the judgment passed by Bombay High Court in Bholeshankar Awas Gruha Nirman Sahakari Sanstha Maryadit v. Omprakash and others. in Civil Appeal No. 4346/2008 decided on 7.7.2008.
5. Learned senior counsel for the appellant placed reliance on the judgment passed by Andhra Pradesh High Court in the matter of Kakaria Gangulappa Naidu and others v. Kolla Gangi Naidu 1982 (1) (HC) A.P. Law J
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