Upendra Singh & Anr. vs Ranveer Singh & Ors

Petitioners No.1 and 2 Upendra Singh and Atar Singh who are defendants No.2 and 4 respectively in the suit, have preferred this petition assailing the order of the appellate court dated 10.09.2018 by which the appeal of the plaintiff -Ranveer Singh has been allowed leading to partial modification of the foundational order passed by the learned Trial Judge on 18.05.2018 in Civil Suit No.307A/2018 granting limited temporary injunction to the plaintiff of restraining the defendants from alienating the suit property. The Appellate Court while allowing the appeal of the plaintiff has gone a step further by restraining the defendants from raising any construction over the suit property.

Learned counsel for the petitioners/defendants No.2 and 4 Shri Prashant Sharma relying upon the Sarwat Jehan Begum (Smt.) Vs. State of M.P. [1991(1) MPWN 124], Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass [AIR 2005 SC 104], Rajesh Kumar Gupta & Ors. Vs. State of M.P. & Ors. [2013(2) MPLJ 707] and Skol Breweries Ltd., Mumbai Vs. Som Distilleries And Breweries Ltd. Rajrachak, Dist. Raisen [2013(2) MPLJ 55] contends that the pleadings clearly revealed that plaintiff was not in possession of the suit property and yet the Appellate Court wrongly passed temporary injunction restraining the defendants from carrying on construction on the suit property on which undeniably the defendants were in possession. It is submitted that the findings rendered in para 20 of the judgment of the Appellate Court are perverse.

Learned counsel for respondent/plaintiff, on the other hand, relying upon "Amar Singh Vs. Union of India & Ors. [(2011) 7 SCC 69]", submits that by the order of Appellate Court complete justice has been done by preserving the suit property by not only restraining the defendants from alienating the same but also from making any construction over it. It is submitted that the impugned order of Appellate Court preserves the suit property rendering it, in the same shape as prevailing at the time of filing of the suit, to be available to satisfy the decree which may be passed in future.

After having heard learned counsel for the rival parties and having perused the reasoning assigned by the Appellate Court, in para 21 and 22 of its order, it is evident that the Appellate Court though found that the pleadings reveal that plaintiff is not in possession but since the serious questions of fact and law are raised in the suit which are yet to be decided, the suit property deserves to be preserved to satisfy the decree which may be ultimately passed. The intention of learned Appellate Judge was to prevent the suit property from undergoing change during pendency of suit. This reasoning of the learned Appellate Court cannot be said to be arbitrary or perverse but instead is based on sound principle of law that all endeavours should be made by the Court to preserve the suit property to be available to satisfy the decree which may be passed in the future unless compelling reasons exist to take a contrary view.

As regards Sarwat Jehan Begum (Smt.) (supra), the said decision was rendered by the Single Bench of this Court while dealing with the Miscellaneous appeal u/O.43 CPC against rejection of an application for temporary injunction by the court of District Judge and therefore the jurisdiction exercised by this Court while adjudicating the Misc. Appeal was not only wider but also different in nature than the supervisory jurisdiction being exercised by this Court in the present case and thus this citation is of no avail to the petitioner.

5.1 As regards the Division Bench decision in the case of Rajesh Kumar Gupta & Ors. (supra), the same does not deal with the provision of Order XXXIX Rule 1 and 2 of CPC but relates primarily to the dispute as to whether the petitioner therein acquired any right of ownership arising out of purchase of land made after final publication of the scheme u/S.56 of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973. Thereafter, the case of Single Bench in Skol Breweries Ltd., Mumbai (supra) is taken up and considered but the same is also irrelevant for the purpose of instant case as the Single Bench of this Court in the said case was again exercising jurisdiction in a Misc. Appeal and was not adjudicating the matter under supervisory jurisdiction.

5.2 Coming to the case, cited by learned counsel for the petitioner, of Apex Court in Maharwal Khewaji Trust (Regd.), Faridkot (supra), it is seen that the law laid down in the said case supports the view taken by this Court in the present case. The Apex Court, in fact, criticized the Appellate Court and the High Court allowing one of the parties by way of temporary injunction permission to change the nature of the land by permitting construction over the suit land. Thus, this judgment of the Apex Court in Maharwal Khewaji Trust (Regd.), Faridkot (supra) is also of no avail to the petitioner.

Thus, the Appellate Court has neither travelled beyond its jurisdictional purview nor has failed to exercise the jurisdiction vested in it, thereby rendering its order immune from the limited supervisory jurisdiction of this Court u/Art.227 of the Constitution.

Before parting, the preservation of interests of both the parties ought to be taken into account and therefore it would be appropriate to direct that all endeavours be taken by the learned Trial Judge to conclude the suit in question i.e.307A/2018 within a period of six months, failing which the petitioners/defendants shall be at liberty to revisit this Court for the same purpose.

Consequently, this petition with the aforesaid liberty to the defendants/petitioners stands dismissed, sans cost.