Research › Search › Judgment

Bombay High Court · body

2018 DIGILAW 2220 (BOM)

Rekha d/o Devbaji Bothe, @ Rekha Ramkrishna Marge v. Kamalabai wd/o Ramkrushna Marge

2018-09-11

MANISH PITALE

body2018
JUDGMENT : 1. By this petition, the petitioner (original defendant no.1) has challenged order dated 03-10-2016, passed by the District Judge-3, Washim (appellate Court), dismissing an appeal filed by her. By the said appeal, she had challenged order dated 08-07-2016, passed by the Court of Civil Judge, Senior Division, Washim (trial Court), granting application for temporary injunction filed by the respondent (original plaintiff). The respondent filed suit for declaration, possession and permanent injunction against the petitioner and her minor son concerning agricultural property in village Shahapur, Tq. Mangrulpir, District Washim, claiming that she was the owner and in possession of the suit property after the death of her husband Ramkrushna Marge. Along with the suit, the respondent filed an application under Order XXXIII Rule 1 of the Code of Civil Procedure, 1908 (CPC) to sue as a forma pauperis. During the pendency of the said application, the respondent filed an application under Order XXXIX Rules 1 and 2 read with Section 151 of the CPC for grant of temporary injunction against the petitioner (defendant). It was claimed that the respondent was in possession of the suit property and that the petitioner was seeking to interfere with her peaceful possession and cultivation of the suit property. The said application was opposed by the petitioner. It was claimed that the defendant (petitioner) was married to deceased Ramkrushna Marge and defendant no.2 was born out of their marriage. It was further claimed that a will deed dated 20-03-2010 was executed by the said Ramkrushna in favour of her minor son (defendant no.2) and that upon the death of said Ramkrushna on 12-05-2015, the petitioner was in continuous possession and cultivation of the suit property. 2. By order dated 08-07-2016, the trial Court found that a marriage certificate had been placed on record issued by the Gram Panchayat, showing that the respondent and said Ramkrushna Marge were married in the year 2002. It was also found by the said Court on examination of the documents placed on record that 'Perepatrak' i.e. crop statements showed certain overwriting and interpolation concerning entries for the years 2014-2015 and 2015-2016. It was found to be surprising by the said Court that entries were made in favour of the petitioner for the year 2014-2015, even when Ramkrushna died on 12-05-2015. It was found to be surprising by the said Court that entries were made in favour of the petitioner for the year 2014-2015, even when Ramkrushna died on 12-05-2015. In this situation, the said documents were found not to be worthy of being considered as relevant for showing possession of the petitioner herein. In the absence of any such reliable documents, the Court relied upon the pleadings of the respondent coupled with the marriage certificate placed on record. It is relevant that an affidavit dated 02-07-2016 of a neighbour was also placed on record that vouched for the respondent being in possession of the suit property. On this basis the application for temporary injunction was allowed by the said Court. The said order was challenged by the petitioner by filing appeal before the appellate Court. By the impugned order dated 03-10-2016, the appellate Court confirmed the findings of the trial Court. The appellate Court considered the said 'Perepatrak' in detail and found that there were markings of effacing of the names in the said documents pertaining to the years 2014-2015 and 2015-2016. It was found that the claim raised by the petitioner and her minor son was based on a Will Deed, which was itself a subject matter of the suit. It was found by the appellate Court that in the Aadhar Card, the name of the petitioner was shown as Rekha Devbaji Bothe, although she claimed to be married to the said Ramkrushna. On the basis of the said documents, pleadings, evidence and material placed on record, the appellate Court dismissed the appeal and confirmed the order passed by the trial Court. The concurrent orders passed in favour of the respondent are subject matter of the challenge in the present Writ Petition. 3. Shri A.R. Deshpande, learned Counsel appearing on behalf of the petitioner raised twofold contentions in support of the present writ petition. Firstly, it was contended that the application for temporary injunction before the trial Court was itself not maintainable because there was no suit filed and pending in the eyes of law until the application filed by the respondent for suing as forma pauperis under Order XXXIII Rule 1 of the CPC was yet to be decided. It was claimed that until and unless the said application was decided, the application for temporary injunction could not have been considered by the trial Court. It was claimed that until and unless the said application was decided, the application for temporary injunction could not have been considered by the trial Court. Secondly, it was contended on merits that the respondent being the plaintiff was required to stand on her own legs and that the discrepancies found in 'perepatrak' i.e. crop statements produced on behalf of the petitioner (defendant no.1) could not accrue to the benefit of the respondent. It was contended that there was no material placed on record, on behalf of the respondent to show she was indeed in possession of the suit property to claim an order of temporary injunction in her favour. On this basis, it was submitted that the writ petition deserved to be allowed and the concurrent orders passed by the Court below deserved to be set aside. 4. Per contra, Mrs. Renuka Sirpurkar, learned Counsel appearing on behalf of the respondent submitted that the contention raised on behalf of the petitioner was not sustainable because the trial Court was justified in taking up and deciding the application for temporary injunction even when the application for suing as forma pauperis filed by the respondent was pending. It was submitted that the Court was required to pass urgent orders to ensure that the property in question was not wasted and no prejudice was caused to the respondent during the pendency of the said application filed on her behalf for suing as forma pauperis. It was submitted that if the application stood allowed, the respondent could very well continue to pursue the suit while if the application was rejected, the Court would still grant time to the respondent to pay court fees and to continue to pursue the suit. In these circumstances, when urgent orders on temporary injunction were sought, consideration of such a prayer could not be postponed merely because the application for suing as forma pauperis was pending. Reliance was placed on the judgments of this Court reported in 1943 ILR 138 (Totaram Wani and others vs Dattu Mangu Wani and others) and 1947 ILR 784 (Bai Sakri vs Bai Dhani). 5. Reliance was placed on the judgments of this Court reported in 1943 ILR 138 (Totaram Wani and others vs Dattu Mangu Wani and others) and 1947 ILR 784 (Bai Sakri vs Bai Dhani). 5. On merits, it was contended that there was sufficient material placed on record on behalf of the respondent to show that the order of temporary injunction was necessary and in the interest of justice in the present case and that no fault could be found with the concurrent findings of the Courts below. 6. Heard learned Counsel for the parties. As regards the first contention raised on behalf of the petitioner, a perusal of the two judgments relied upon, on behalf of the respondent shows that the aforesaid question has been squarely considered and decided in the said judgments. It has been held in the case of Totaram Wani (supra) that when it becomes necessary to have prompt action in order to prevent suit property from being made away with by the defendant, the Court can certainly take such action as would be necessary even if application for suing as forma pauperis is pending. In the said case, the Court was concerned with the question of appointing a commissioner and for grant of exparte injunction, even when the application for suing as forma pauperis was still pending. It was held that the Court could certainly consider the aspect of appointment of Commissioner and grant of injunction, notwithstanding the fact that the application for suing as forma pauperis was still pending. In the other judgment in the case of Bai Sakri (supra), reliance was placed on the reasoning given in the judgment of Totaram Wani (supra) and the said reasoning was approved. The Division Bench of this Court referred to Order XXXIX Rule 1 of the CPC and emphasized that in a situation where it appeared to the Court that it was necessary to preserve the suit property, the Court could pass appropriate orders even when an application for suing as forma pauperis was pending. 7. A perusal of Order XXXIX Rule 1 of the CPC shows that power is exercised by the Court when a party seeking urgent orders on the application for interim injunction approaches the Court. 7. A perusal of Order XXXIX Rule 1 of the CPC shows that power is exercised by the Court when a party seeking urgent orders on the application for interim injunction approaches the Court. The situation ought not to be materially different if the suit filed by the plaintiff is accompanied by an application for suing as forma pauperis under Order XXXIII Rule 1 of the Code. The said application would either be allowed or rejected. In case it is allowed, the applicant would certainly be able to pursue the suit filed by her and even if it stands rejected the Court would obviously grant time to such an applicant to deposit Court fee within a particular period of time,. Upon such deposit, the applicant would be able to pursue the suit. It was only when the applicant failed to deposit Court fee in stipulated time that the proceedings would lapse. But the decision on urgency of the suit and entitlement of a person approaching the Court for grant of temporary injunction ought not to be contingent on decision of such an application for suing as forma pauperis. Therefore, applying the ratio of the judgments relied upon, on behalf of the respondent, the first contention raised by the petitioner is rejected. 8. On merits of the case, a perusal of the concurrent orders passed by the two Courts below shows that the respondent placed on record a marriage certificate showing that she was indeed married to one Ramkrushna. She also pleaded that upon the death of the said Ramkrushna (husband) on 12-05-2015, she was in ownership and possession of the suit property. She also placed on record affidavit dated 02-07-2016 of a neighbour stating that the respondent was indeed in possession and cultivating the suit property at the time of filing of the suit, the application for suing as forma pauperis and the application for grant of temporary injunction. 9. On the other hand, the petitioner claimed that a Will Deed dated 20-03-2010 was executed in favour of her minor son by the said Ramkrushna to whom she was allegedly married. She claimed that by virtue of the said Will Deed, upon the death of Ramkrushna on 12-05-2015, she and her minor son had come in possession and cultivation of the suit property. She claimed that by virtue of the said Will Deed, upon the death of Ramkrushna on 12-05-2015, she and her minor son had come in possession and cultivation of the suit property. Reliance was placed on the document i.e. 'perepatrak' (crop statements) pertaining to the years 2014-2015 and 2015-2016 to support the said contention raised on behalf of the petitioner. On this basis, it was contended that the respondent was not entitled to her prayer for temporary injunction. The Courts below have concurrently found that in the said crop statements for the years 2014-2015 and 2015-2016, there was effacing of names, overwriting and interpolation. It was also found to be surprising by the Courts below that even when the death of Ramkrushana occurred on 12-05-2015, the crop statement pertaining to the year 2014-2015 showed the names of the petitioner and her minor son. On this basis, the Courts below refused to take into consideration the said crop statements as a basis for deciding possession of either party in the suit property. No fault can be found with the said approach adopted by the Courts below, because a perusal of the said crop statements indeed shows overwriting. The petitioner has claimed ownership of the suit property and consequently possession over the same from 2015 onwards on the basis of Will Deed dated 20-03-2010. But the said Will Deed is itself a subject matter of challenge in the suit filed by the petitioner. It is also an admitted position on record that in the probate proceedings initiated by the petitioner in connection with the said Will Deed dated 20-03-2010, the respondent has raised objections. Thus, the said Will Deed dated 20-03-2010 cannot become the basis for the petitioner to deny the claim of temporary injunction made on behalf of the respondent. 10. Even otherwise, the petitioner has failed to place on record any cogent material to show that she was in any manner related to the said Ramkrushna. The Courts below found that even in the Aadhar Card issued in the name of the petitioner, her name is shown as Rekha Devbaji Bothe. The record further shows that when the bailiff sought to serve summons/warrants on the petitioner, she refused to accept such warrants/summons issued in the name of Rekha Ramkrushna Marge, on the basis that she was Rekha Devbaji Bothe. The record further shows that when the bailiff sought to serve summons/warrants on the petitioner, she refused to accept such warrants/summons issued in the name of Rekha Ramkrushna Marge, on the basis that she was Rekha Devbaji Bothe. Thus these documents, prima facie, show that the petitioner claimed that she was married to Ramkrushna Marge on the one hand and on the other hand she was asserting her identity as Rekha Devbaji Bothe and not Rakha Ramkrushna Marge. Although, there cannot be any quarrel with the proposition that the applicant/plaintiff should stand on her own legs when claiming an order of temporary injunction, the material placed on record in the present case certainly shows that the respondent/ original applicant/plaintiff has placed on record some material in support of her claim, while the material placed on record by the petitioner prima facie shows interpolation and overwriting in crucial documents and a denial of any relationship with the said Ramkrushna. The aforesaid affidavit of neighbour filed on record showing that the respondent was in cultivating possession of the suit property further supports the case of the respondent. Such material on record demonstrates that no error was committed by the Courts below in granting and confirming the order of temporary injunction in favour of the respondent. 11. In the light of the above, it is evident that the petitioner failed to make out a case in her favour. Accordingly, the Writ Petition is dismissed and the orders passed by the Courts below are confirmed. Consequently, no orders are required to be passed on the Civil Applications.