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2015 DIGILAW 288 (RAJ)

Vishnu Prasad v. Hetiraj Sharma

2015-01-30

ATUL KUMAR JAIN

body2015
JUDGMENT : Atul Kumar Jain, J. In a suit for partition and for cancellation of "Patta" in which there were 37 defendants, and the suit property was in possession of defendants No.1to4, an application for temporary injunction was filed by the appellant/plaintiff Vishnu Prasad in the trial court and the trial court ordered that the said defendants will not alienate or transfer the suit property in any manner to any third party but defendants No.1 to 4 will be entitled to raise the construction on the suit property, subject to the approved map provided that they file an affidavit in the trial court to the effect that at the time of final decree the said defendants will not be entitled to claim any benefit on the basis of expenditure incurred by them in the said construction. 2. It has been argued in this appeal by learned counsel for the appellant Vishnu Prasad that the trial court had given a finding that prima facie case exists in favour of the plaintiff but still the question of balance of convenience and irreparable loss were decided in favour of the defendants and so only limited temporary injunction was granted in favour of the plaintiff which should be enlarged as per him. 3. I have perused the impugned order and I have also perused the papers submitted by the parties in this case. I have heard arguments of both the parties. It has been submitted by the respondents that previously also a suit for partition was filed by Vishnu Prasad and that suit No. 33/2010 (366/2010) was dismissed by ADJ No.2, Ajmer on 02.05.2012, similarly, Civil Suit No.263/1993 (old No.110/1977) filed by Vishnu Prasad for compensation of the suit property was also dismissed by Civil Judge (JD) Pushkar on 23.08.1999. The judgment dated 23.8.1999 was upheld by ADJ No.4 Fast Track, Ajmer on 08.03.2010 in Civil Appeal No.370/2009. All these facts were concealed by the appellant in the trial court for no justifiable excuse. 4. Both the parties have also submitted the latest photographs of the construction work of the suit property. Respondents submit that if the construction work is stopped then they will have no place to live in. 5. All these facts were concealed by the appellant in the trial court for no justifiable excuse. 4. Both the parties have also submitted the latest photographs of the construction work of the suit property. Respondents submit that if the construction work is stopped then they will have no place to live in. 5. On the other hand, appellant has argued that if the respondents are allowed to change the basic structure of the suit property then it will be very difficult for the trial court to decide the suit for partition in a proper manner and that will cause prejudice to the rights of the appellant. 6. Appellant relies upon the following rulings:- (1) Makers Development Services v. M. Visvesvaraya Industrial Research And Development (2012)1 SCC 735 . In this case the lower courts had declined to permit further construction while deciding application under Order 39, Rule 1 & 2 CPC and that order was upheld by the Apex Court. (2) Meharwal Khewaji Trust (Regd.), In this case it was held by the Apex Court that during the pendency of litigation, except in exceptional circumstances, change of status-quo of property should not be allowed. 7. On the other hand, respondents have relied upon the following rulings:- (i) Chotu Meena v. M/s Osho Real Estate & Ors. S.B. C.M.A.2671/2013 decided by Rajasthan High Court Bench, Jaipur on 3.9.2013. In that case it was held that if the trial court has passed the impugned order in details taking into consideration of factual and legal aspects in the matter and has held that the appellant has not come with clean hands and therefore was not entitled for temporary injunction, as prayed for. Such order of the trial court will not be disturbed by the High Court. (ii) Raj Kumar & Ors. v. Harchand @ Harish & Ors. 2013 (2) WLN (Raj.) 248. In this case it was held that when there is no prayer in the application or in the suit for not raising any construction, then in civil misc. appeal respondents cannot be restrained to make further construction. (iii) Mahanagar Telephone Nigam Ltd. v. State of Maharashtra & Ors. 2014(1) Civil Court Cases III (S.C.). 2013 (2) WLN (Raj.) 248. In this case it was held that when there is no prayer in the application or in the suit for not raising any construction, then in civil misc. appeal respondents cannot be restrained to make further construction. (iii) Mahanagar Telephone Nigam Ltd. v. State of Maharashtra & Ors. 2014(1) Civil Court Cases III (S.C.). In this case Hon'ble the Apex Court held that a person who approaches the court for grant of a relief is under solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. He owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence accepted of a person of ordinary prudence. If he is found guilty of concealment of material facts or making attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny any relief to such person. 8. In the case, in hand, also the appellant appears not to have come with clean hands before the court below. He has apparently concealed material documents before the trial court. Earlier judgments regarding suit property were relevant and necessary for perusal of the trial court. Suit property is admittedly in possession of respondents No.1 to 4 and in the circumstances of the case, the order passed by the trial court on the application under Order 39, Rule 1 & 2 CPC filed by Vishnu Prasad appears to be fully justified and well guarded also. 9. The impugned order fully protects the rights of both the parties and it has been clearly mentioned in the impugned order that respondents No. 1 to 4, though allowed to raise construction as per approved map but in case the suit is decided for or against them, they will not be entitled to claim any extra benefit on the basis of new construction made by them in the suit property. 10. Hence, this appeal is bereft of any force, which is hereby dismissed and the impugned order is left undisturbed. 11. Copy of this order be sent to the trial court immediately. Appeal dismissed.