RAJU KUMAR GUPTA Vs. ASHOK TAMRAKAR

JUDGEMENT

(1.) This Petition has been filed under Article 227 of the Constitution of India being aggrieved by the order dtd. 14/2/2023 passed by the 1st Additional District Judge, Ambikapur, District Surguja in Civil Suit No.1-A/2022 whereby, the application preferred by Respondent No.12/Plaintiff under Sec. 151 CPC has been allowed and the Petitioner/Defendant No.11 has been restrained from raising construction over the property in question.

(2.) Brief facts of the case are that Respondent No.11 filed a suit for declaration of title and permanent injunction as one of the co-sharers has transferred the joint property of the Petitioner without any partition, therefore, the said suit was filed for declaring the sale deed dtd. 17/2/2021 executed in favour of the Plaintiff as not binding and upon filing of said suit, initially, the Court below has granted temporary injunction in favour of the Plaintiff, however, the Petitioner/ Defendant No.11 continued to change the nature of property with continuous construction, therefore, an application was preferred under Sec. 151 CPC for restraining the same and by way of the order impugned, the Court below has allowed the application and the Petitioner was directed to maintain status quo and not to change the nature of the suit property with further construction till disposal of the suit.

(3.) Shri Singh, learned Counsel for the Petitioner submits that the order impugned is illegal as the Petitioner is a bona fide purchaser and is raising a construction over the portion purchased by him. He further submits that even if the suit of Plaintiff will be decreed, then the Plaintiff will get only half share and the property sold by Defendants No.5 to 7 can be deducted from their share. He further submits that the power under Sec. 151 CPC can only be invoked in such circumstances where alternative remedy does not exist. He placed reliance in the matter of My Palace Mutually Aided Co-operative Society vs. B. Mahesh and Others reported in 2022 SCC OnLine SC 1063 and referred to para-33, wherein it was held that the inherent powers enshrined under Sec. 151 CPC can be exercised only where no remedy has been provided for in any other provision of CPC and submits that the Court below has wrongly exercised the provision under the said Sec. and therefore, the order impugned may be quashed.