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Madhya Pradesh High Court · body

2011 DIGILAW 324 (MP)

Jaiprakash Associates Ltd. v. State Of M. P.

2011-03-09

A.K.SHRIVASTAVA

body2011
JUDGMENT ( 1. ) BY this petition under Article 227 of the Constitution of India the petitioner/defendant Nos. 17 (wrongly typed as defendant No. 3 in memorandum W.P.), is challenging the validity of the impugned order dated 15-9-10 passed by learned VI Additional District Judge, Rewa in Misc. Civil Appeal No. 24/2010 whereby temporary injunction application of plaintiff dated 7-8-2006 which has been rejected by the learned trial Court, has been allowed by issuing temporary injunction against the petitioner/defendant No. 17. ( 2. ) IN brief, the case of plaintiff is that he has filed a suit for declaration of Bhumiswami right and injunction against the defendant Nos. 1 to 16 in respect of certain agricultural land the description whereof is mentioned in the plaint. An application for issuance of temporary injunction was also filed by him against these defendants. The State of M. P. and Tehsildar, Rewa have been arrayed as defendants No. 1 and 2 respectively. The application for issuance of temporary injunction against all these defendants 1 to 16 which was allowed on 4-2-2003 by learned trial Court and the order was confirmed in Misc. Appeal No. 75/2004 dated 18-4-2006. The order of learned Appellate Court was never challenged by any of the defendants including the State of M. P.V defendant No. 1. Later on, the present defendant/petitioner was arrayed as defendant No. 17 because on account of subsequent events which took place, as the land in question was leased out to the present petitioner by the State of Madhya Pradesh hence, the plaintiff again filed an application for issuance of temporary injunction against this defendant on 7-8-2006 after impleading him as party (defendant No. 17). In the application, it has been stated that plaintiff is the owner of the suit property and is in possession. It has also been stated in the application that earlier the plaintiff filed an application for temporary injunction against the defendant Nos.1 to 16 and learned trial Court allowed that application which was affirmed by learned First Appellate Court. In the application, it has been stated that plaintiff is the owner of the suit property and is in possession. It has also been stated in the application that earlier the plaintiff filed an application for temporary injunction against the defendant Nos.1 to 16 and learned trial Court allowed that application which was affirmed by learned First Appellate Court. On account of leasing out the property in question by State of M. P. to the present newly added defendant / petitioner, fresh application has been filed in which it has been stated that plaintiff is having prima facie case since he is Bhumiswami having possession on the suit property and in case, he is dispossessed, he will have to face unreparable loss and balance of convenience also lies in his favour. This application of plaintiffs was opposed by petitioner/defendant No. 17 by filing a reply. ( 3. ) THE learned trial Court, after hearing the parties, rejected the application. However, the Appellate Court, by allowing the appeal of plaintiff has allowed the application of temporary injunction. ( 4. ) IN this manner this petition has been filed. Smt. Pandit, learned counsel for the petitioner submitted that earlier temporary injunction order which was issued by the Court at that juncture, the present petitioner was not arrayed as defendant and because the present petitioner has been added as defendant No. 17, later on, therefore, earlier temporary injunction order passed against the defendants, is not binding upon it. Learned Counsel submits that on account of bald statement, the plaintiff is not entitled for temporary injunction. In support of her contention, she has placed reliance on certain decisions of Supreme Court, they are Shankar Vijay Saw Mills vs. Union of India and another, (1983) 4 SCC 418. Dwarikesh Sugar Industries Ltd. vs. Prem Heavy Engineering Works (P) Ltd. and anr., (1997) 6 SCC 450 , Karnataka Board of Wakf vs. Government of India and ors., (2004) 10 SCC 779 , Dinesh Mathur vs. O. P. Arora and others (1997) 10 SCC 520 and Rame Gowda (Dead) by LRs. vs. M. Varadappa Naidu (Dead) by LRs. and another, (2004) 1 SCC 769 . By placing heavy reliance on the decision of Rameshwar and ors. vs. M. Varadappa Naidu (Dead) by LRs. and another, (2004) 1 SCC 769 . By placing heavy reliance on the decision of Rameshwar and ors. vs. Jotram and ors., AIR (1976) SC page 49, it has been put forth by the learned counsel that right to obtain the relief has to be determined as on the date of institution of proceedings and the Court's procedural delays cannot affect rights crystallized in initial cause of action. ( 5. ) LEARNED counsel further submits that since the State of M. P. has leased out the suit property to the petitioner for mining purpose, the very purpose would be frustrated in case the temporary injunction application of plaintiff is not rejected and therefore, the learned counsel submits that the order passed by learned Appellate Court be set aside and the order of trial Court rejecting the application of plaintiff under Order 39, Rules 1 and 2 be restored. ( 6. ) SHRI Ashish Shroti, learned Govt. Advocate supported the argument of learned counsel for the petitioner. No one has put appearance on behalf of plaintiffs/respondents No. 3 to 5. Having heard the learned counsel for the parties, I am of the opinion that this petition deserves to be dismissed. ( 7. ) THE stand of defendant No.17/petitioner who has been recently added in the suit is that the State of M. P. has leased out the suit property to it to carry on the mines. Thus, according to me, if a judicial order has attained finality against the State of M. P. and Tehsildar, who are arrayed as defendants No. 1 and 2 in the suit, certainly, the petitioner would get the suit property subject to the decision of the suit and all the orders which were passed against the State of M. P. would also be binding on the petitioner who has been recently arrayed as defendant No. 17. Since the temporary injunction order issued against the defendants including defendant No. 1 State of M. P. and No. 2 Tehsildar restraining them not to interfere in the possession of plaintiffs till the decision of the suit which also attained finality (because the State did not assail the order in this Court), the lease of the disputed property which has been given by the State of M. P. to carry out mines to the petitioner/defendant No. 17 would be deemed to be subject to the temporary injunction order passed by the Courts against defendants and which has attained finality. Hence, according to me, if now some other order is passed, it would amount to nullifying the earlier temporary injunction order. Certainly, the present petitioner is deriving right, title, interest from the State Government and therefore, if the temporary injunction is running against the State of M. P. and its functionaries, the petitioner/defendant No. 17 who is deriving right, title, interest from the State, would also be governed by the order passed against the State. ( 8. ) ADMITTEDLY, during the pendency of the suit, the State of Madhya Pradesh has leased out the suit property to defendant No. 17/petitioner. According to me, section 52 of the Transfer of Property Act, 1882 is having wider connotation and it will include decree as well as order passed in a suit or in the proceedings. The doctrine of lis pendence would be applicable to the transferee because under this section not only the decree but the word 'order' has also been used and hence, the transferee is bound by the order passed against the party from whom the transferee is deriving right, title interest in the suit property. According to me, the explanation to section 52 Transfer of Property Act is also applicable in the present case which explains that suit or proceeding would commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by final decree or order and complete satisfaction and discharge of such decree and order has been obtained. In the explanation clause too, along with final decree, the word 'order' has been legislated in order to include the interim orders also. In the explanation clause too, along with final decree, the word 'order' has been legislated in order to include the interim orders also. Otherwise also, if the plaintiff would not have arrayed present petitioner as new defendant No. 17, even then the order of temporary injunction passed earlier by the trial Court and affirmed by the Appellate Court would be binding on present petitioner on account of doctrine of lis pendens. Learned counsel for the petitioners submitted that earlier, the temporary injunction order which was passed, was an ex parte order and therefore, no attention should be given to it and in this regard, reliance has been placed on BALCO Employees Union vs. Union of India and ors., AIR 2002 SC 350 , in which it has been held by the Supreme Court that no ex parte injunction should be passed in respect of public project. However, according to me, this decision would not be applicable in the present case because earlier the order of temporary injunction was granted in favour of plaintiffs and against the defendants and which has also attained finality and therefore, now, the said order cannot be set aside. Hence, I am of the view that the said decision of Supreme Court is not applicable in the present case. ( 9. ) SO far as, the contention of learned counsel that suit itself is not maintainable, according to me, if such a plea is raised in the written-statement, certainly an issue will be framed and learned trial Court will decide the said issue in accordance with law. ( 10. ) HENCE, for the reasons stated above, I do not find any merit in this petition and the same is hereby dismissed. However, the trial Court is directed to decide the suit itself as soon as possible preferably within a period of six months from today. No costs. Petition dismissed.