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2017 DIGILAW 1684 (RAJ)

Kundan Singh v. Alok Kanwar

2017-07-28

ARUN BHANSALI

body2017
JUDGMENT : Arun Bhansali, J. The amended cause title filed by the appellant in view of the fact that the respondent No. 6-Bank has merged in State Bank of India, is taken on record, the same be placed at appropriate place by the office. 2. This appeal is directed against the order dated 20.04.2016 passed by the Add. District Judge, Pali ('the trial court'), whereby the trial court has granted injunction against the appellant from alienating the suit property, however, the application has been rejected against the respondents No. 2 to 6. 3. The suit was filed by the respondent No. 1-plaintiff seeking cancellation of sale deed and adoption deed said to have been executed by her in favour of the appellant with the averments that the sale deed was executed without any consideration, the adoption deeds were got executed deceitfully. The appellant remained ex-parte in the suit as well as T.I. application. 4. A reply to the application was filed by the respondent No. 6-Bank, inter alia, alleging that the parties i.e. the appellant and the plaintiff were hand in glove, the property was mortgaged by the appellant in the Bank and a huge amount was outstanding and, therefore, the application be rejected. 5. The trial court after hearing the plaintiff as well as counsel appearing for the Bank and Govt. Counsel, came to the conclusion that there was no prima facie case in favour of the plaintiff, however, it was then observed that as the appellant herein did not appear and the matter was ex-parte against him, he must be restrained from transferring the suit property. The issues pertaining to balance of convenience and irreparable injuries were also decided in one line. 6. Further while passing the operative portion, it was directed that the appellant will not transfer the suit property, the application was rejected qua the respondents No. 2 to 6 and a right was given to the plaintiff to settle the dues of the Bank and it was also directed that on payment made by the plaintiff, an implied contract between the plaintiff and the appellant regarding refund of amount by the appellant would be deemed. 7. 7. Learned counsel for the appellant submitted that besides the fact that the order was wrongly passed ex-parte against the appellant, even on merits, the impugned order of injunction could have been passed as once the trial court came to the conclusion that there was no prima facie case in favour of the plaintiff, the application should have been rejected and, therefore the order impugned deserves to be quashed and set aside. 8. Learned counsel for the plaintiff duly supported the order impugned. It was submitted that once a dispute between the parties, which is in the nature of a family dispute exists, the passing of order for maintaining status quo is innocuous and, therefore the same does not call for any interference. 9. Reliance was placed on judgment of Hon'ble Supreme Court in the case of Akriti Land Con. Pvt. Ltd. v. Krishna Bhargava & Ors.: 2017 DNJ (SC) 290. 10. Learned counsel for the Bank submitted that pursuant to the order passed by the trial court, no amount has been deposited by the plaintiff. 11. I have heard learned counsel for the parties and have perused the material placed on record. 12. The trial court based on the reply filed by the Bank and the submissions made on behalf of the plaintiff came to the conclusion that there was no prima facie case in favour of the plaintiff, after reaching the said conclusion, in a strange fashion, it was observed that as the appellant was ex-parte, order can be passed against him for not transferring the suit property. The passing of the said order by the trial court after having reached a conclusion that there was no prima facie case in favour of the plaintiff was wholly uncalled for. The said finding regarding lack of prima facie case pertained to the suit itself and was not confined qua the case of respondents No. 2 to 6 and, therefore, in those circumstances, the order passed by the trial court cannot be sustained. 13. Further, the order in the operative portion without any discussion regarding the payment by the plaintiff to the Bank though neither apparently any prayer in this regard was made by the plaintiff nor the Bank made any submissions in this regard, is also beyond the jurisdiction of the trial court. 14. 13. Further, the order in the operative portion without any discussion regarding the payment by the plaintiff to the Bank though neither apparently any prayer in this regard was made by the plaintiff nor the Bank made any submissions in this regard, is also beyond the jurisdiction of the trial court. 14. So far as the judgment cited by learned counsel for the plaintiff is concerned, the said judgment does not lay down that even in a case where there is no prima facie case in favour of the plaintiff, still orders of status quo must be granted. As in the present case, the trial court has reached to a conclusion that there is no prima facie case in favour of the plaintiff, which finding has not been questioned by the plaintiff by filing any appeal, the judgment has no application to the facts of the present case. 15. In view of the above discussion, the order dated 20.07.2016 passed by the trial court cannot be sustained. 16. Consequently, the appeal filed by the appellant is allowed, the order dated 20.04.2016 is quashed and set aside and application filed by the plaintiff under Order 39, Rule 1 and 2 CPC is rejected.