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2017 DIGILAW 1219 (MP)

Govind Singh Raghuvanshi v. Ramratan

2017-11-29

VIVEK AGARWAL

body2017
ORDER 1. Petitioner has filed this petition under Article 227 of the Constitution of India being aggrieved by the order passed by the Fourth Additional District judge, Vidisha, in MCA No.32/2015 on 17.1.2017 affirming the order passed by the Fourth Civil Judge, Class II, Vidisha, in Civil Suit No.96-A/2014 rejecting the application for temporary injunction filed by the plaintiff. 2. It is plaintiff/petitioner's contention that though trial Court in para 10 of its impugned order has categorically mentioned that petitioner had filed copy of the plaint as was registered as Case No.149-A/1976 (Ramratan v. Deewan Singh), copy of the written statement, copy of compromise application and copy of the document showing verification of compromise, yet these documents, which were on record before the trial Court, were not taken into consideration while deciding the application under Order 39 rules 1 and 2 CPC. His further grievance is that first appellate Court was so blind folded that it not only refused to take cognizance of the documents on record, but in para 12 of the impugned order it has also mentioned that plaintiff had not filed any such document which demonstrates that such land was ever in the name of the plaintiff or his forefathers. Thereafter, in para 13 first appellate Court has recorded a finding that plaintiff should have filed either affidavit of Ramratan so to prove the High Court of Madhya Pradesh compromise or should have filed copy of the order whereby the said compromise was verified/accepted. Such findings of the first appellate Court are prima facie perverse on the face of it. 3. Learned counsel for the respondent on the other hand submits that by filing an application under Order 39 rules 1 and 2 CPC plaintiff had only sought a relief that defendant No.8 (respondent No.7 in this petition) be restrained from getting the mutation of the suit property in his name. He submits that now this relief has been rendered infructuous inasmuch respondent No.7/defendant has not only obtained mutation, but also this mutation has been confirmed upto the Board of Revenue. He further submits that he is willing to furnish an undertaking not to alienate the suit property during the pendency of the suit and that will serve the purpose and this petition can be disposed of with a direction to the learned trial Court to decide the suit expeditiously within a period of six months. He further submits that he is willing to furnish an undertaking not to alienate the suit property during the pendency of the suit and that will serve the purpose and this petition can be disposed of with a direction to the learned trial Court to decide the suit expeditiously within a period of six months. He submits that in a petition under Article 227 of the Constitution of India the Court should not go into the legality or otherwise of the order, especially when no effective relief can be granted now once the mutation has already been carried out in favour of the defendant No.8. 4. The scope of Article 227 of the Constitution of India is to have superintendence over the working of the subordinate Courts. If the subordinate Courts act in such a fanciful manner that after recording availability of documents on record, they fail to consider them and first appellate Court gets so much carried away that it fails to consider the documents available on record, then this Court in its supervisory jurisdiction cannot sit idle and refuse to exercise its supervisory jurisdiction merely because the High Court of Madhya Pradesh relief which has been sought by the plaintiff has now become technically impossible inasmuch as mutation has already been carried out in the name of respondent No.7. As far as relief of mutation is concerned, those revenue entries can always be corrected, but if a relief has been granted on a wrong presumption or incorrect reading of the facts or where the documents which were available before the trial Court and which were recorded by the trial Court, were not taken into consideration by the trial Court, then it cannot be said that trial Court has applied its mind while deciding the application under Order 39 rules 1 and 2 CPC. The same fault has been committed by the first appellate Court which has absolutely failed to apply its mind and has recorded certain findings which are not only perverse, but arbitrary and illegal, therefore, both the impugned orders deserve to be and are set aside. The same fault has been committed by the first appellate Court which has absolutely failed to apply its mind and has recorded certain findings which are not only perverse, but arbitrary and illegal, therefore, both the impugned orders deserve to be and are set aside. Matter is remitted back to the Court of 4th Civil Judge, Class II, Vidisha, to take into consideration all the documents as are mentioned in para 10 of its order dated 30.1.2015, besides other material which has been filed by either of the parties and then decide the application under Order 39 rules 1 and 2 CPC afresh. This decision will have direct bearing on the mutation proceedings and the parties will be free to challenge the mutation proceedings on the basis of such fresh order as may be passed by the said Civil Judge. In the meanwhile, interim protection granted by this Court on 11.7.2017 shall continue till the application under Order 39 rules 1 and 2 CPC is decided by the trial Court afresh. It is made clear that trial Court will not get influenced by any of the observation and shall decide the application on its own merits. The only expectation from the trial Court is to take into High Court of Madhya Pradesh consideration all the material available before it. With the aforesaid, this petition is disposed of. D.D. Bansal for petitioner; Amit Lahoti for respondent No.7.