ORDER

Heard finally with the consent of both the parties.

In this petition under Article 227 of the Constitution of India, the petitioners have assailed the order dated 23.11.2022 (Annexure-P/27) passed in MCA No. 76/2022 by the 5th District Judge, Katni, whereby the order dated 08.11.2021 (Annexure-P/25) passed in RCS No.21A/2021 allowing the application under Order 39 Rules 1 and 2 of the C.P.C. has been reversed. 2.

on the basis of adverse possession and injunction was filed by the petitioners along with application under Order 39 Rules 1 and 2 of the C.P.C.

3.

the petitioners to sale the suit land. Learned trial Court after going through the records of the case came to the conclusion that at present the plaintiffs are operating a Petrol Pump and the approach road to the Petrol Pump appears to be the suit property and in such a situation if, the respondent alienates or sales the property, the petitioners/plaintiffs would suffer irreparable loss. Looking to the balance of convenience as well as irreparable loss in favour of the petitioners, the other objections raised by the respondent/defendant can only be decided after recording of evidence, the trial Court allowed the application under Order 39 Rules, 1 and 2 of the C.P.C. to the effect that the defendant/respondent shall not alienate, encroach or interfere with the peaceful possession of the plaintiffs/petitioners.

4.

of the C.P.C. assailing the order dated 08.11.2021 before the lower Appellate Court. The Appellate Court reversed the findings of the learned trial Court on the ground that as per the pleadings the petrol pump has been shown to be established in the year 2015 whereas, the suit filed before the trial Court on 13.01.2021 within a period of six years and, therefore, the suit could have been filed after waiting for a period of 12 years to prove adverse possession. In spite of the aforesaid, the learned trial Court has allowed the application.

5.

the lower Appellate Court has rightly reversed the finding of the trial Court, inasmuch as, it was proved that the basic pre-ingradients i.e. prima facie case, balance of convenience and irreparable injury, necessary for granting injunction under Order 39 Rules, 1 and 2 of the C.P.C. have not been satisfied. Moreover, the period of limitation is 12 years and before expiry of 12 years, the plaintiffs have filed the suit which is not maintainable as held by the Appellate Court. As such, the lower Appellate Court has not committed any error in reversing the order of the trial Court. In any case, no irreparable injury would be caused to the defendant and prima facie case and balance of convenience also lie in favour of the defendant.

6.

7.

following three principles are applied:-

(i) Whether plaintiff has a prima facie case;

(ii) Whether balance of convenience is in favour of the plaintiff;

(iii) Whether the plaintiff would suffer irreparable injury if temporary injunction is declined.

8.

with the prayer for injunction. In fact the learned trial Court has dealt with the prayer for injunction on the aforesaid sound principles of law and came to the conclusion whereas the learned lower Appellate Court went on to consider the merits of the case by holding that the suit is not maintainable because of period of limitation had not expired. The learned lower Appellate Court has committed an error while reversing the findings of the learned trial Court.

9.

set aside. The order dated 08.11.2021 passed by the learned trial Court is restored to its original position.

10.

indicated hereinabove. No order as to costs.

(S. A. DHARMADHIKARI)

JUDGE

ashish