Pritam Kaur and Another vs Amarjit Kaur and Another

Daya Chaudhary, J.—The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 19.11.2012 passed by Additional District Judge, Ludhiana, vide which, appeal filed against order dated 20.03.2010 passed by the trial Court in application under Order 39 Rules 1 and 2 CPC filed by respondents-plaintiffs has been allowed. Briefly, the facts of the case are that respondents No. 1 and 2 filed a suit for possession by way of partition of the house by mentioning boundaries. Along with the suit, an application under Order 39 Rules 1 and 2 CPC was also filed for grant of temporary injunction restraining the petitioners, which was dismissed vide order dated 20.03.2010 on the ground that no prima-facie case was made out and balance of convenience was also not in favour of the applicant. Thereafter, respondents filed an appeal against order dated 20.03.2010 and the same was allowed vide order dated 19.11.2012, which is subject matter of challenge in the present revision petition.

Learned counsel for the petitioners submits that the learned Appellate Court has not taken into consideration the three requisite ingredients required for grant of interim injunction as that the house in dispute is in deteriorated condition and the same has also been mentioned in the report of the Local Commissioner. No loss is being caused to the respondents in any manner. There was a family settlement between the parties and the respondents have already received an amount in lieu of said house and thereafter, after a long delay, the suit has been filed. Learned counsel further submits that the said family settlement was never challenged during life time of Balwinder Singh. All facts were taken into consideration by the trial Court while deciding application of interim injunction in favour of the respondents. Learned counsel also relies upon the judgment of Hon''ble the Supreme Court in Kishorsinh Ratansinh Jadeja Vs. Maruti Corp. and Others, Learned counsel also submits that condition of house in dispute is such, which may cause damage or harm not only to the petitioners but to other persons of the locality also. Petitioners undertake not to claim anything in case, the plaintiffs-respondents succeed in the suit.

Heard the arguments of learned counsel for the petitioners and have also gone through the impugned order as well as order passed by the trial Court.

The controversy between the parties is that they are closely related. One Pishora Singh was owner of the house in dispute and during his lifetime, he executed a will dated 21.07.1961 in favour of his two sons, namely, Balwinder Singh and Harminder Singh. Pishora Singh died in the year 1990 and his two sons, namely, Balwinder Singh and Harminder Singh became owner of the house. Harminder Singh died in the year 2000 and during his lifetime, he also executed a will in favour of respondents. After his death, respondents became owners of half share of the house in dispute. Balwinder Singh also died in the year 2002 leaving behind his legal heirs and they became owner to the extent of half share of the house in dispute. The case of the defendants-petitioners is that Balwinder Singh received an amount of Rs. 7500/- from Harminder Singh on account of half share in suit property and also received an amount of Rs. 36,000/- on account of half share in Ford Tractor, which was acknowledged in presence of material witnesses. It was reduced in writing on 18.10.1982 and thereafter, Balwinder Singh died after 20 years of execution of said document dated 18.10.1982, which was never challenged. It is also the case of the petitioners that plaintiffs respondents are bound by writing dated 18.10.1982. Suit was also filed beyond period of limitation.

Application filed by applicants-respondents was dismissed by recording a specific finding that balance of convenience lies in favour of the petitioners-defendants. Plaintiffs-respondents remained silent for about 20 years and never claimed any right or title over the property. Thereafter, appeal filed by plaintiffs-respondents was allowed and well reasoned finding was set-aside.

Admittedly, basic principles for granting injunction, a prima-facie case, balance of convenience and also irreparable loss and injury are to be taken into consideration while passing order of injunction. A person, who has remained in possession of the house in dispute for a period of more than 20 years and the settlement between the parties was reduced into writing and subsequently, after passing of such a long period, the suit is filed, then irreparable loss would be to the person, who is in possession of the house in dispute for a considerable long time. Although learned counsel for the petitioners on instructions from the petitioners, undertakes that the condition of the adjoining area is deteriorating and in case, the petitioners are allowed to repair/construct, they shall not claim anything and same would be subject to decision of the main suit. Moreover, the order passed by the First Appellate Court amounts to maintenance of status quo and accordingly, no irreparable loss would be caused to the respondents and balance of convenience is also in favour of the plaintiffs-respondents. No legal infirmity is there in the impugned order passed by the First Appellate Court and the petition being devoid of any merit is dismissed. However, in case, any such undertaking is given by the petitioners, the same be considered by the trial Court in accordance with law.