The court permits service by paper publication when notice cannot be served and considers prima facie evidence for temporary injunction applications.

IN THE HIGH COURT OF MADHYA PRADESH AT INDORE FA No. 512 of 2023 (SMT. SUSHILA BAI Vs LOKHNATH PANDYA DECEASED THROUGH LRS. RAJESH PANDYA AND OTHERS )

Dated : 29-08-2025 Ms. Bhavna Raikwar - Advocate for the appellant.

Shri Brajesh Kumar Pandya, learned counsel for the respondent [R-2]. Heard on I.A.No.7420/2025 an application under Order 5 Rule 20(1)

and 1(a) of CPC seeking permission to serve the respondents by way of paper publication.

2. Counsel for the appellants submits that despite several attempts of the appellant to serve notice, the respondent no.1 remain unserved till date. Respondent no.1 is deliberately avoiding service of notice, therefore, the appellant be permitted to serve them by way of paper publication.

3. On due consideration, application is allowed. The respondent no.1 be served by way of paper publication in the daily newspaper having wide circulation in the local area, out of which one should be in English newspaper and one in Hindi.

4. In addition, appellant is also permitted to serve the respondents through e-mail. Necessary steps be taken within ten days. Counsel for the appellant shall file an affidavit after the service along with the copy of the newspaper.

5. Also Heard on I.A. No.1604/2023 an application under Order XXXIX Rule 1 & 2, read with Section 151 of CPC .

6. Counsel the appellant has submitted that appellant has filed the first Signature Not Verified Signed by: SUMATHI appeal under Section 96 of C.P.C. challenging the judgment and decree passed by VII District Judge, Ujjain in regular Civil suit no. 20-A/2020 (RCS-A no. 46600044/2014) dismissing the suit preferred by the appellant for partition, possession and mesne profit.

7. The appellant/ plaintiff has adduced the oral and documentary evidence to prove her title and interest in the suit houses. During the pendency of the suit, an application under Order XXXIX, Rule 1 & 2 of CPC was filed by the appellant, which was allowed by the trial Court vide order dated 13.05.2014 thereby restraining the respondents from alienating the suit houses and the interim relief continued till the passing of the final order on 07.10.2016. Due to dismissal of the suit upon adverse finding recorded by the trial court, the respondents have started to create the third party interest in the suit properties.

8. Counsel contended that the partition has not been done in the suit property. The respondents have not submitted any documentary evidence with regard to the partition and only on the basis of oral evidence, the trial Court has held that partition has been done and rejected the application filed by the petitioner. The respondent no.3 who is an employee of Nagar Nigam, Ujjain has intentionally concealed the file of the petitioner in order to create delay. The prima-facie case is in favour of the appellant and balance of convenience lies in her favour, if temporary injunction is not granted, the appellant is likely to suffer irreparable loss. Hence counsel prayed that the present application be allowed and the respondents be restrained from alienating the suit property.

9. Learned counsel for the respondent vehemently opposed the prayer by submitting that the learned trial Court has correctly held that the suit property has already been partitioned. The respondents contested the suit that the suit may not be maintainable as there has been previous partition. Jagmohan and Signature Not Verified Signed by: SUMATHI Chandrashekar have filed affidavit in the Nagar Nigam Office, Ujjain that house no.112 which is under the ownership of Anandilal may be transferred in favour of Loknath. It is further submitted that the oral and documentary evidence produced respondents prima facie proves that partition has been done between them. It is well settled that when the partition is admitted or proved, the presumption is that all the joint properties wer