Johar Mohli vs Jitendra Mohli S/o late Sokhilal Mohli.

Rajesh Kumar, J

The present C.M.P. has been filed for the following relief(s):

For quashing / set aside the order dated 31.01.2025 (Annexure-4) passed by Sri Radha Krishan, the learned Principal District Judge, Jamtara in Civil Appeal No. 11 of 2024 whereby and where under the learned Appellate Court has been pleased to allow the appeal filed by the appellants/ Plaintiffs and set aside the order dated 02.04.2024 (Annexure-3) passed by the learned Civil Judge ( Senior Division)-II, Jamtara by which the learned Civil Judge rejected the petition filed by the Plaintiffs on 29.01.2024 under order 39 Rule 1 & 3 C.P.C for temporary injunction in Original Suit No. 37 of 2021, pending in the court of learned Civil Judge (Sr. Division)-II, Jamtara."

The present proceeding emerges from a Partition suit being Original Suit No.37 of 2021 wherein a petition under order 39 rule 1&2 of the Civil Procedure Code (C.P.C.) was filed for restraining the respondents from making any construction, in which a pleader commissioner has been appointed. After going through the report of the pleader commissioner, the learned trial court observed that since the construction work is going on and defendant have admitted that they are renovating the old house, as such, injunction has been refused.

The said order was challenged in Civil Appeal No. 11 of 2024 wherein the learned Principal District Judge, Jamtara vide order dated 31.01.2025 allowed the appeal filed by the appellants/plaintiff and set aside the order dated 02.04.2024 passed by the learned Trial Court in the petition under Order 39 Rule1 & 2 of the CPC.

Prima facie, the appellate order appears to be wholly without jurisdiction. It has been passed on the pretext that construction has been made by one Salauddin Mian S/o of Rafique Mian, who is not a party to the proceeding.

Nobody can be restrained who is not a party to the proceeding, since, the very object of the order passing under Order 39 Rule 1 and 2 CPC has to be applied between the parties. Since, Salauddin Mian S/o Rafique Mian is not a party, therefore, the order passed on the presumption that the said Salauddin Mian is making construction, is wholly without jurisdiction.

Learned counsel for the opposite parties has defended the order saying that since it is a suit property, the Court has every power to pass an order. Further, allowing the construction will amounts to creation of third party right.

Having heard learned counsel for the parties and on perusal of the record, especially the pleader commissioner report, it transpired that some portion of the suit land is in possession of the Salauddin Mian. The construction is being made by Salauddin Mian, which cannot be a ground for restraining Salauddin Mian from making the construction when he is not party to the proceeding.

Even if it is presumed that the construction is being made by Johar Mohli, he is replacing his old construction by a new construction and he is one of the share holder that has been accepted by the parties because it is a partition suit.

Order 39 Rule1 & 2 provides three criteria:

Prima facie case

Balance of convenience

Irreparable loss.

In the present case, it is a partition suit and Johar Mohli has every right being the shareholder and he is possessing a piece of land with existing residential house, which is being replaced by the pucca structure. There is possession of the residential house. Balance of convenience lies in favour of Johar Mohli and there is no irreparable loss made to any parties because the nature of land is not being changed because there is existing structure over the said piece of land.

It is settled principle of law that any trial is between the parties and it can affect only the parties to the proceeding not to a person, who is not a party to the proceeding. This basic factual matrix has been overlooked by the appellate court while reversing the order dated 02.04.2024 passed by the trial court in Original Suit No. 37 of 2021.

In that view of the matter, I find that the order dated 31.01.2025 passed by the learned Principal District Judge, Jamtara in Civil Appeal No. 11 of 2024 rejecting the order dated 02.04.2024 passed under Order 39 Rule 1& 2 CPC by the learned trial Court of Civil Judge (Senior Division)-II, Jamtara in Original Suit No. 37 of 2021, is wholly without jurisdiction and is accordingly set aside.

The CMP is allowed, accordingly.