Research › Browse › Judgment

Madhya Pradesh High Court · body

1977 DIGILAW 369 (MP)

Mohaiyatdin v. Ramayansingh

1977-09-23

J.P.BAJPAI

body1977
Short Note : 1. A preliminary point was raised on behalf of the non-applicants about the maintainability of this revision. It was contended that since application for temporary injunction was moved under Order 39 of the Code of Civil Procedure and from the perusal of the order impugned also it is apparent that the temporary injunction has been granted by applying the principles of Order 39, rule 1 of the Code of Civil Procedure, the applicant should have preferred an appeal against the order made by the trial Court. Held : On going through the order I find that the learned counsel appearing for the applicant is correct in saying that the order impugned gives the clear impression that the injunction has been granted under section 151 of the Code. It is true that the trial Court might be wrong in making the order under section 151 of the Code and should have made the same under the provisions of Order 39 CPC, but the revision application made by the applicant before this Court cannot be thrown out on the ground that he should have construed the order as one under Order 39 despite the specific mention of section 151 of the Code of Civil Procedure by the trial Court and should have preferred an appeal. 2. The trial Court believed the affidavits filed by the plaintiff on the consideration that the version of the plaintiff found support from the entries in Khasra. In any case, the trial Court has exercised its discretion and has believed the version of the plaintiff tentatively for the limited purpose of deciding the question of temporary injunction. The order impugned has been made in the year 1975. In my opinion, no case is made out for interference in revision with the aforesaid conclusion arrived at by the trial Court. It cannot be said that the discretion exercised by the trial Court is arbitrary or capricious in any manner so as to call for interference in revision. 3. On behalf of the applicant, it was contended that the suit was collusive and mala fide. Defendant No. 2, father of the plaintiff, after having sold the suit land and after having received the amount of consideration to the extent of Rs. 7,500 has dishonestly got the present suit instituted in the name of his minor son simply with a view to harass the applicant. Defendant No. 2, father of the plaintiff, after having sold the suit land and after having received the amount of consideration to the extent of Rs. 7,500 has dishonestly got the present suit instituted in the name of his minor son simply with a view to harass the applicant. In my opinion, all this may be the subject-matter of final adjudication on merits. At this stage for the purposes of deciding the question of grant of temporary in junction, the consideration of maintaining status quo in respect of possession as prevailed on the date of the suit is primarily relevant. 4. However, it would be just and proper to impose certain conditions so as to protect the interest of the non-applicant defendant No. 1 in case the plaintiff fails in his suit. Shri Pathak, learned counsel appearing on behalf of the non-applicant, did not dispute the position that such conditions may be imposed in this respect. The suit land comprises of 6.68 acres of agricultural land. By treating the same as a holding of average yield, it is directed :- (1) That the non-applicant No. 1 shall furnish security to the satisfaction of the trial Court for securing mesne profits at the rate of Rs. 1,200 per annum for the years 1975 and 1976 ; (2) That for the year 1977 and onwards a sum of Rs. 1,200 be annually deposited on or before the 30th of April. Revision partly allowed.