Rakesh Patel vs Yudhisthir Kumar Patel

Sanjay Yadav, J.—Heard on admission. This Miscellaneous Appeal under Order 43 Rule 1(r), CPC 1908 is directed against the order dated 18.10.2013 passed by XVIIth Additional District Judge, Jabalpur in Civil Suit No. 57-A/2011, whereby an application under Order 39 Rule 1 and 2 CPC has been dismissed.

Suit at the instance of appellants is for declaration and permanent injunction in respect of Residential Unit No. 92 situated at Samdariya Green City admeasuring 986 sq. ft. The suit property as evident from the pleadings, was purchased by Smt. Radhika Bai, first wife (not mother of appellant) of Shankarlal father of the appellants/plaintiffs on 13.9.2005. She was in possession of the said property and had no issues. Radhikabai executed the will on 5.7.2010 and bequeathed the suit property to respondent/defendant Nos. 2 and 3. Radhikabai expired on 15.12.2010.

The Trial Court taking note of the facts that Radhikabai had left Shankarlal 42 years ago before she died on 15.12.2010. That, the suit property was purchased by her and was in possession thereof. That, she had no relationship with the father of appellant/plaintiff born out of second marriage. That, during her lifetime she had bequeathed her property in the name of respondent/defendant Nos. 2 and 3, held that the appellants/plaintiffs have failed to establish prima facie case, the balance of convenience and the irreparable injury, accordingly dismissed the application.

Trite it is that while exercising the discretion for grant of an interim injunction during pendency of a suit following three tests are applied, viz., (i) whether plaintiff has prima facie case, (ii) whether balance of convenience is in favour of the plaintiff and (iii) whether the plaintiff would suffer irreparable injury. That, unless these parameters are meted out the plaintiff would not be entitled for a relief of temporary injunction during pendency of the Civil Suit. (Please see Dorab Cawasji Warden Vs. Coomi Sorab Warden and others, and Hindustan Petroleum Corporation Ltd. Vs. Sri Sriman Narayan and Another, ).

In the case at hand as apparent from the findings that the suit property was purchased by Radhikabai who had separated from appellants'' father 42 years ago and that she bequeathed the suit property to respondent/defendant Nos. 2 and 3, the appellants were rightly denied temporary injunction as would warrant an interference. Consequently, appeal fails and is dismissed. No costs.