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2013 DIGILAW 1541 (MP)

Lokendra Jain v. Bandiviya Samachar Patra

2013-12-10

K.K.TRIVEDI

body2013
JUDGMENT K.K. Trivedi, J:- This appeal under Section 43 Rule 1 (r) of the Code of Civil Procedure is directed against the order dated 23.11.2012 passed in Civil Suit No. 444-A/2010 by the 14th Additional District Judge, Bhopal. 2. The respondent No.1/plaintiff filed a suit for declaration and permanent injunction contending inter alia that on the plot No.17 of M.P. Nagar Zone No. 1, Bhopal, a lease was granted in favour of respondent/plaintiff on 16.07.1986 by the Bhopal Development Authority. However, there was some dispute on account of which earlier holders of the newspaper have seized their authority. The possession of the said plot and room constructed thereon was delivered to the respondent/plaintiff by the Bhopal Development Authority on 08.07.2010. After obtaining sanction from the Municipal Corporation, when the construction was started by the respondent/plaintiff obstruction was started by the appellant/defendant No.2, therefore, the suit was required to be filed. In the suit an application under Order 39 Rule 1 and 2 was filed by the respondent/plaintiff seeking temporary injunction against the appellant and other defendants. A reply to the said application was submitted by the appellant contending that the lease hold rights were given to the defendant No.1. After mutual partnership for construction of a residential-cum-commercial complex an agreement of Joint Venture was executed on 18.10.1995 by the appellant with the defendant/respondent No.2 herein. Pursuance to such agreement after receipt of the full consideration amount by the respondent No.2 herein the appellant became entitle to make construction. Illegally it was said that the respondent No.1/plaintiff has acquired the lease of the land in suit whereas mere change in the declaration made under the Press and Book Registration Act, no right is created in favour of the respondent/plaintiff, therefore, the application was liable to be dismissed. The other persons have also filed their reply. 3. The Civil Court considered the application of the respondent/plaintiff for grant of temporary injunction and came to the conclusion that prima facie case was in favour of the respondent/plaintiff, balance of convenience tilted in its favour and it would suffer irreparable loss in case the temporary injunction is not granted. After holding so, the Civil Court granted injunction in favour of the respondent/plaintiff by the impugned order hence, this appeal is filed. 4. After holding so, the Civil Court granted injunction in favour of the respondent/plaintiff by the impugned order hence, this appeal is filed. 4. At the outset, it is submitted by learned counsel for the appellant that while entertaining this appeal, an interim order was passed on 10.05.2013, and it was directed that till next date of hearing the respondents shall neither alienate the property in question nor shall alter its nature and in case this order is made absolute with a direction to decide the suit expeditiously, the purpose of filing appeal would be served. It is further contended by learned counsel for the appellant that the Court below has erred in holding that the balance of convenience was in favour of the respondent/plaintiff inasmuch as there were other dispute pending between the same parties and the suit plot is not exclusively belonging to the respondent/plaintiff. It is contended that the respondent/plaintiff has obtained the plot by transfer even when the dispute was pending between the original holder of the plot and the appellant herein in the Civil Court and an injunction order was already issued by the Civil Court. Thus, in fact there was no question of granting temporary injunction in favour of the respondent/plaintiff. 5. Per contra, it is contended by learned Senior counsel for the respondents No. 1 and 2 that if the law is properly appreciated, the documentary evidence indicates that the respondent/plaintiff was in possession of the land and was authorized to use plot No.17 as a lease was executed in its favour by the Bhopal Development Authority. If the land was alloted in its favour on 16.07.1986 as claimed, such a right of use of land cannot be forfeited. As far as the right is available to the respondent/plaintiff, no restrain could be put on the respondent No.1/plaintiff, and no prayer can be made in this respect even by filing an application in a pending suit by the defendant like appellant herein and, therefore, there is no justification of passing order dated 10.05.2013 putting restrain on the respondent No.1/plaintiff. It is submitted that such a course is not open as the appellant herein is only a defendant and he otherwise cannot claim injunction against respondent No.1/plaintiff without filing a counter claim in the suit seeking some relief for himself or without filing an independent suit against respondent No.1/plaintiff. It is submitted that such a course is not open as the appellant herein is only a defendant and he otherwise cannot claim injunction against respondent No.1/plaintiff without filing a counter claim in the suit seeking some relief for himself or without filing an independent suit against respondent No.1/plaintiff. It is thus contended that the order has rightly been passed by the Court below and the same is not required to be interfered with in this appeal. 6. After giving thoughtful consideration on such submissions of learned counsel for the parties, it seems that there is a dispute with respect to the ownership of the newspaper. Whatever the stand, the lease was granted by the Bhopal Development Authority in the name of Bandhviya Samachar and that being so, the lease cannot be said to be granted in favour of somebody, who was representing the said Bandhviya Samachar. Had it not been a case that the lease is not granted in the name of Bandhviya Samachar, the lease deed as placed on record with the plaint would not have been executed on 16.07.1986. This shows that prima facie case was in favour of the respondent No.1/plaintiff as it was having the lease deed in its favour. 7. Now, the question would be whether a restrain could be put to a plaintiff on an application made by the defendant in any manner. It is not in dispute that the appellant is not in physical possession of the land in suit. The physical possession of the land is with the respondent/plaintiff. In view of this, unless a counter claim is made seeking possession of the plot in question by the defendant, even if prima facie case or issue of title is involved, no prayer for grant of temporary injunction made by the defendant in such a suit can be entertained. Such a situation is clear from the law laid down by this Court in the case of Chhitoo Hirajee and others Vs. Sakharam Umadia and others, 1982 MPLJ 499 . For the purposes of consideration of prima facie case, the factum of physical possession is materially important which undisputedly is tilted in favour of the respondent/plaintiff. Now, the balance of convenience is also to be examined in light of this. Sakharam Umadia and others, 1982 MPLJ 499 . For the purposes of consideration of prima facie case, the factum of physical possession is materially important which undisputedly is tilted in favour of the respondent/plaintiff. Now, the balance of convenience is also to be examined in light of this. Unless there is a threat of destruction of the property, restrain cannot be put on a person holding prima facie title, in view of the law laid down by this Court in the case of Mohd. Hafiz Khan vs. Smt. Naziban Bibi and another 1973 JLJ-SN 114. What is to be seen is again there is any threat of alienation. Mere construction if done by the respondent/plaintiff in accordance to sanction, it cannot be said that the land of plot No.17 is going to be destroyed or damaged. That being so, again it cannot be said that the balance of convenience is not tilted in favour of the respondent/plaintiff. 8. Now, the only question is whether there would be any irreparable loss caused to any of the parties in suit if no restrain is put. Here the construction is being done by the respondent/plaintiff in accordance to the sanction granted by the competent authority of Municipal Corporation, Bhopal. Even if the building is constructed, the appellant herein would be compensated in terms of the money but in case the construction which is being done by the respondent/plaintiff is stopped, not only the plan, sanctioned for the construction would expire, the work which is done would be destroyed and huge loss would be caused to the respondent/plaintiff in making construction as the process of construction has already been commenced. That being so, in the considered opinion of this Court, the law laid down by the Apex Court in the case Maharwal Khewaji Trust (Regd.) vs. Baldev Dass, (2004) 8 SCC 488 , would not be attracted or applicable and, therefore, a restrain to respondent/plaintiff to carry out the construction in terms of the sanction is not justified. 9. In view of the discussions made herein above, there is no illegality committed by the Court below in granting temporary injunction to the respondent/plaintiff. In view of this, the appeal fails and is hereby dismissed. However, there shall be no order as to costs.