Raju Kumar Gupta vs Ashok Tamrakar

This Petition has been filed under Article 227 of the Constitution of India being aggrieved by the order dated 14.02.2023 passed by the 1st Additional District Judge, Ambikapur, District Surguja in Civil Suit No.1-A/2022 whereby, the application preferred by Respondent No.12/Plaintiff under Section 151 CPC has been allowed and the Petitioner/Defendant No.11 has been restrained from raising construction over the property in question.

Brief facts of the case are that Respondent No.11 filed a suit for declaration of title and permanent injunction as one of the co-sharers has transferred the joint property of the Petitioner without any partition, therefore, the said suit was filed for declaring the sale deed dated 17.02.2021 executed in favour of the Plaintiff as not binding and upon filing of said suit, initially, the Court below has granted temporary injunction in favour of the Plaintiff, however, the Petitioner/ Defendant No.11 continued to change the nature of property with continuous construction, therefore, an application was preferred under Section 151 CPC for restraining the same and by way of the order impugned, the Court below has allowed the application and the Petitioner was directed to maintain status quo and not to change the nature of the suit property with further construction till disposal of the suit.

Shri Singh, learned Counsel for the Petitioner submits that the order impugned is illegal as the Petitioner is a bona fide purchaser and is raising a construction over the portion purchased by him. He further submits that even if the suit of Plaintiff will be decreed, then the Plaintiff will get only half share and the property sold by Defendants No.5 to 7 can be deducted from their share. He further submits that the power under Section 151 CPC can only be invoked in such circumstances where alternative remedy does not exist. He placed reliance in the matter of My Palace Mutually Aided Co-operative Society vs. B. Mahesh and Others reported in 2022 SCC OnLine SC 1063 and referred to para-33, wherein it was held that the inherent powers enshrined under Section 151 CPC can be exercised only where no remedy has been provided for in any other provision of CPC and submits that the Court below has wrongly exercised the provision under the said Section and therefore, the order impugned may be quashed.

Per contra, Smt Siddiqui supports the order impugned.

Heard learned Counsel for the parties and also perused the documents annexed with the Petition carefully.

It is well settled that during the pendency of the suit, normally, the status quo of the suit property has to be maintained unless no exceptional case has been made out for permitting the Defendant to to raise a construction and alienate the same and the said issue has come up before the Supreme Court in the matter of Maharwal Khewaji Trust (Regd.), Faridkot vs. Baldev Dass reported in (2004) 8 SCC 488, wherein, at para-10, it was held as under:-

“10. Be that as it may, Mr. Sachhar is right in contending that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the conditions on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored.”

In the case law cited upon by learned Counsel for the Petitioner i.e. My Palace Mutually Aided Co-operative Society vs. B. Mahesh and Others also, the Supreme Court has categorically opined that inherent powers cannot be used in conflict of any other existing provision.

Reverting back to the facts of the present case, in view of the aforesaid principles, this Court is of the opinion that the discretion exercised by the Court below by granting temporary injunction in favour of the Plaintiff has no illegality or perversity and is found just and proper, which does not call for any interference.

Accordingly, the instant Petition is bereft of any substance and is hereby dismissed.