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2013 DIGILAW 854 (RAJ)

Dhuri Devi v. Gorkha Ram

2013-05-01

VIJAY BISHNOI

body2013
JUDGMENT 1. - This appeal is preferred by the appellant while challenging the order dated 21.12.2012 passed by the Additional District Judge No.3, Bikaner whereby the application preferred by the appellant under Order 39, Rule 1 and 2 C.P.C. for granting temporary injunction has been rejected. 2. Brief facts of the case are that the appellant preferred a suit against the respondents for permanent injunction, declaration and partition under Order 7, Rule 1 C.P.C. in respect of ancestral house situated at Ward No.26 Nokha,District Bikaner and for agricultural land situated at village Somalsar, Tehsil, Nokha, District Bikaner while alleging that the said properties are ancestral and the appellant is also having ⅕ share in the said properties which is in the joint ownership and possession of the appellant and respondents. It is alleged that the respondents No.2 and 3 Kheraj Ram and Iswar Ram have forcibly got a release deed executed in their favour from late Asha Ram, uncle of the appellant for releasing his rights and share in respect of the ancestral house and now the respondents after demolishing the old ancestral house are raising new construction. It is also alleged that the respondents are bent upon to alienate the agricultural land situated at village Somalsar, Tehsil Nokha, District Bikaner in which the appellant is also having her ⅕ share and, therefore, a declaration regarding her share and a permanent injunction of restraining the respondents have been sought by the appellant. Along with the said suit, an application under Order 39, Rule 1 and 2 read with Section 151 C.P.C. was also preferred and the temporary injunction against the respondents had also been sought. 3. The learned trial court after hearing the parties dismissed the said application preferred for temporary injunction under Order 39, Rule 1 and 2 C.P.C. while observing that the appellant had not disclosed about the fact of pendency of a civil suit in respect of the ancestral house preferred by respondent No.2 Kheraj Ram against the appellant and other respondents wherein the appellant has filed an Ikabali Jawab Dawa (consent written statement) in favour of the respondent No.2 Kheraj Ram and, therefore, she has not approached the trial court with clean hands and as such she has failed to prove the prima facie case in her favour. The learned trial court upon finding no prima facie case in favour of the appellant, vide order dated 21.12.2012 dismissed the application for temporary injunction preferred by her. 4. Being aggrieved with the impugned order, the appellant has preferred this misc. appeal. 5. Learned counsel for the appellant has argued that the learned trial court has dismissed the said application for temporary injunction preferred by the appellant on the basis of conjectures and surmises. It is further contended by the learned counsel for the appellant that earlier suit preferred by the respondent No.2 Kheraj Ram was on a different subject matter from the present suit filed by the appellant. It is contended that in the suit preferred by the appellant, she sought partition of the agricultural land situated in village Somalsar and, therefore, it cannot be said that the earlier suit preferred by the respondent No.2 Kheraj Ram has any impact on the present suit. It is further contended by learned counsel for the appellant that none of the respondents has raised any allegation against the appellant for concealing any fact especially regarding the pendency of the suit preferred by respondent No.2 Kheraj Ram then there was no occasion for the trial court to dismiss the application of the petitioner for temporary injunction against the respondents while observing that since the petitioner has not disclosed about the pendency of the suit preferred by respondent No.2 Kheraj Ram, she has not approached this Court with clean hands and has failed to prove prima facie case in her favour. 6. Learned counsel for the appellant has further argued that the alleged Will as well as release deed dated 4.4.1994 executed by late Shri Asha Ram in favour of some respondents is void and, therefore, a prima facie case for granting injunction against the respondents is clearly made out but the learned trial court has not taken into consideration this aspect of the matter and has rejected the application for temporary injunction preferred by the appellant in illegal manner. 7. This Court has considered the submissions made on behalf of the appellant and also perused the impugned order passed by the learned trial court. 8. 7. This Court has considered the submissions made on behalf of the appellant and also perused the impugned order passed by the learned trial court. 8. The learned trial court has observed that the appellant has preferred this suit for partition of ancestral house as well as the agricultural land, however, in the plaint as well as application for temporary injunction, she has not disclosed about the suit preferred by the respondent No.2 Kheraj Ram in respect of the very same ancestral house in which the appellant has filed an Ikbali Jawab Dawa (consent written statement) and after noticing this fact, the learned trial court has opined that the appellant has not approached the court below with clean hands as the fact of pendency of earlier suit was an important fact particularly in view of Ikbali Jawab Dawa (consent written statement) filed by the appellant and, therefore, the trial Court has refused to exercise its discretion in favour of the appellant. 9. In the facts and circumstances of the case and particularly in view of the admitted position that the appellant has concealed the factum of pendency of earlier suit in which Ikbali Jawab Dawa (consent written statement) was filed by the appellant, this Court is of the opinion that the learned trial court has not committed any illegality in not exercising its discretion in favour of the appellant and has rightly rejected the application under Order 39, Rule 1 and 2 C.P.C. for temporary injunction preferred on behalf of the appellant. 10. In such circumstances, there is no force in this appeal, the same is hereby dismissed.Appeal Dismissed. *******