Aruna Banta And Others vs Dr. Raj Kamal Banta And Another

Ajay Mohan Goel, J

By way of this petition filed under Article 227 of the Constitution of India, the petitioners have challenged the order passed by the Court of learned

Civil Judge, Court No.4, Shimla, in CMA No.790-6 of 2019, filed in Civil Suit No.45 of 2019, titled as Aruna Banta and others Versus Dr. Raj Kumar

and another, dated 09.12.2019, vide which an application filed by the present petitioners under Order 39 Rules 1 and 2 of the Code of Civil Procedure,

has been dismissed, as also, the judgment passed by the Court of learned Additional District Judge-cum-Special Judge (C.B.I.), Shimla, in Civil Misc.

Application No.8-S/14 of 2019, titled as Aruna Banta Versus Dr. Raj Kumar and another, dated 25.02.2020, whereby, the appeal filed by the present

petitioners against the order of learned Trial Court, stood dismissed by the learned Appellate Court.

Brief facts necessary for adjudication of the present petition are that the petitioners herein have filed a suit for declaration to the effect that the

plaintiffs have inherited the suit property alongwith defendants from Smt. Shakuntla Devi, predecessor-in-interest of plaintiffs and that Will dated

27.03.2015, bearing No.1853 registered at Sub-Registrar, Chandigarh, is illegal, null and void, inoperative qua the right, title and interest of the plaintiffs

as the same has not been executed by late Smt. Shakuntla Devi Banta, with consequential relief of permanent prohibitory injunction for restraining the

defendants from alienating, encumbering or changing the nature of the suit property. Alongwith this suit, an application under Order 39 Rules 1 and 2

of the Code of Civil Procedure, also stood filed for grant of interim injunction. This application was dismissed by the Court of learned Civil Judge,

Court No.4, Shimla, vide order dated 09.12.2019, by holding that as the plaintiffs were challenging the Will, which was duly registered and executed,

therefore, as except the bald allegation that the Will was surrounded by suspicious circumstances, there was no other material on record to

substantiate said allegations, the plaintiffs were not entitled for the relief of temporary injunction. Learned Trial Court while returning these findings

held that in the facts and circumstances of the case, neither prima-facie case was in favour of the plaintiffs, nor balance of convenience, nor it stood

proved on record that in event of denial of interim injunction, the plaintiffs shall suffer irreparable loss. Learned Trial Court took note of the fact that

litigation was also pending between the parties before Civil Court at Chandigarh, which fact was not disclosed by the plaintiffs.

Feeling aggrieved, the plaintiffs filed a Civil Misc. Appeal No.8-S/14 of 2019. Vide judgment dated 25.02.2020, the appeal has also been dismissed

by the learned Appellate Court, inter alia, by holding that it was confirming the findings returned by the learned Trial court as the plaintiffs were not

having a prima-facie case in their favour as there was nothing on record to suggest that the alleged Will was not a genuine document. Learned

Appellate Court held that as the property stood bequeathed by mother of the defendants in their favour, interim relief if any, will have an adverse

impact on the true owners of the property, who had inherited the same by virtue of Will in issue. Learned Appellate Court also held that as grant of

temporary injunction was equitable and discretionary right and as the plaintiffs had not approached the Court with clean hands and had deliberately

concealed the fact that legitimacy of their relation with late Shri Pankaj Mohan Banta was in question before a Civil Court at Chandigarh, therefore

also, they were not entitled for any relief.

Feeling aggrieved, the plaintiffs have filed this petition under Article 227 of the Constitution of India.

I have heard learned counsel for the parties and gone through the orders as well as documents appended therewith.

In exercise of powers under Article 227 of the Constitution of India, the High Court is not to act as an appellate Court, but it only has to exercise its

powers of superintendence in order to ensure that there is no perversity and illegality with the orders, which stood passed by the learned Courts below.

Coming to the facts of the case, there are concurrent findings by the learned Courts below while dismissing the application filed by the petitioners

for grant of interim injunction, under Order 39 Rules 1 and 2 of the Code of Civil Procedure and also the appeal that the petitioners had failed to fulfill

the ingredients which are necessary for the petitioners in order to give interim injunction from a Civil Court. A perusal of the orders passed by the

learned Trial Court as well as learned Appellate Court, demonstrate that reasons stand assigned therein as to why the learned Courts did not agree

with the contentions raised by the petitioners for grant of interim injunction. In my considered view, the reasons which have been given by the learned

Courts below while dismissing the application as well as the appeal are cogent reasons and same do not call for any interference. Learned Courts

below have come to the conclusion that till the time, it stood proved that Will in dispute was not a genuine Will, presumption was attached with the

genuineness of the Will. In my considered view, these are correct findings, which have been returned by both the learned Courts below. As it is the

allegation of the plaintiffs that Will in issue was not a genuine document, onus is upon the plaintiffs to prove it and till the time the same has to be

proved by the plaintiffs, but obvious, it cannot be said that Will is a forged document and surrounded by suspicious circumstances. Further, the findings

returned by the learned Courts below that the plaintiffs did not approach the Court with clean hands, is clearly borne out from the record of the case,

because the plaintiffs, in fact, have concealed the fact that legitimacy of their relation with Pankaj Mohan Banta, through whom they are staking their

claim in the property of late Smt. Shakuntla Devi, is subject matter of a suit in a Court at Chandigarh.

Accordingly, in view of the observations made hereinabove, as this Court does not finds any infirmity in the order of learned Trial Court and

judgment passed by the learned Appellate Court, this petition being devoid of merit, is dismissed. It is clarified that the observations made hereinabove,

are only for the purpose of adjudication of this lis and the same shall have no bearing as far as adjudication of the civil suit is concerned.