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2014 DIGILAW 757 (MP)

Ramnarayan v. Arvind

2014-07-02

PRAKASH SHRIVASTAVA

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Judgment: Prakash Shrivastava, J. 1. This appeal under 43 Rule 1 of the CPC is at the instance of the plaintiff in the suit challenging the order of the trial Court dated 14/2/2012 passed in CS No. 8-A/2011 rejecting the appellants application under Order 39 Rule 1 and 2 CPC. 2. The appellants as well as the respondent No. 1 are sons of Shiv Prasad Chaurasiya and the respondent No. 4 is the daughter of Shiv Prasad Chaurasiya whereas the respondent No. 2 and 3 are sons of respondent No. 1. 3. The appellants had filed the suit for declaration and permanent injunction pleading that their father Shiv Prasad Chaurasiya had executed the will dated 30/4/2005 bequeathing ground floor of the house bearing No. 441 to the appellant No. 1 and making a provision for other properties in respect of the other legal heirs. Their further case is that the ground floor shop in question is a tenanted premise for which the appellant No. 1 is receiving rent and that the respondents are claiming the property on the basis of the will dated 21/7/2006 which is a fabricated will. Shiv Prasad Chaurasiya had died on 29/7/2006. The appellants had claimed declaration on the basis of the will dated 30/4/2005 in their favour and also for the declaration of will dated 21/9/2006 as forged and fabricated. Along with the suit the appellants had filed an application under Order 39 Rule 1 and 2 CPC seeking temporary injunction restraining the respondents from interfering in their use and possession as also anti suit injunction seeking stay of the further proceedings in the eviction suit No. CS 22-A/2010 pending before the VII Addl. District Judge, Indore filed by the respondents for eviction of the tenant from ground floor of House No. 441. The trial Court, by the impugned order dated 14/2/2012 has rejected the application for temporary injunction. 4. Learned counsel for appellants submits that the appellants are claiming to be the owner of the ground floor, therefore, if the respondents are allowed to continue with the eviction suit against the tenant in the ground floor then that would affect the appellants right, hence anti suit injunction is required to be granted in the case. 5. As against, the learned counsel for respondents has submitted that both the suits are pending before the Courts of Coordinate jurisdiction, therefore, anti suit injunction cannot be granted. 5. As against, the learned counsel for respondents has submitted that both the suits are pending before the Courts of Coordinate jurisdiction, therefore, anti suit injunction cannot be granted. 6. I have heard the learned counsel for parties and perused the record. 7. The trial Court by order dated 14/2/2012 while rejecting the appellants application under 39 Rule 1, 2CPC has given proper reasons. The trial Court has noted that there are two wills produced in the case and the eviction suit has been filed by the respondents on the basis of one of the will. It has further been noted that the nature of both the suits is different and in the eviction suit the concerned respondents has to prove the necessary requirement for succeeding in such a suit. It has been found that the appellants have failed to prove prima-facie case for grant of temporary injunction. 8. The appellants are not entitled for any such anti suit injunction also for the reason that u/S. 41(b) of the Specific Relief Act, injunction cannot be granted to restrain any person from instituting or prosecuting any proceedings in a Court not subordinate to that from which the injunction is sought. Meaning thereby a Court cannot grant injunction restraining any person from instituting or prosecuting any proceedings in a court of coordinate or superior jurisdiction. In an appropriate case a court can grant the injunction in instituting or prosecuting any proceedings in a court subordinate to it. Section 41(b) is attracted even at the stage of grant of temporary injunction since even at that stage the order cannot be passed to nullify or stultify the statutory provision. [See Cotton Corporation of India Limited Vs. United Industrial Bank Limited and others, AIR 1983 SC 1272 ]. 9. In the present case, the suit for declaration filed by the appellants is pending before the VII Addl. District Judge, Indore whereas suit for eviction filed by the respondents is also pending before another VII Addl. District Judge, Indore having the coordinate jurisdiction. Thus, the trial Court while passing the impugned order has rightly not granted temporary injunction and has refused the prayer for stay of further proceedings in the eviction suit since such an anti suit injunction in the present case could not be granted by the trial Court in view of the bar contained in Section 41(b) of the Act. 10. Thus, the trial Court while passing the impugned order has rightly not granted temporary injunction and has refused the prayer for stay of further proceedings in the eviction suit since such an anti suit injunction in the present case could not be granted by the trial Court in view of the bar contained in Section 41(b) of the Act. 10. In these circumstances, no ground for interference in the impugned order of the trial Court is made out. The appeal is accordingly dismissed.