SUSHMA SONI Vs. PRAMOD GUPTA

JUDGEMENT

(1.) This appeal has been filed by the plaintiff under Order 43 Rule 1 of the Civil Procedure Code, being aggrieved the order dated 2-3-2009, passed by 8th Additional District Judge (Mr. R. P. Gupta), Indore, rejecting an application under Order 39, Rules 1 and 2 read with section 151 of the Civil Procedure Code.

(2.) Plaintiff filed the suit seeking declaration and permanent injunction with respect to agricultural land of Survey No. 132/1 area 0.178 hectare and Survey No. 133/2 area 1.176 hectare, situated at village Mangaliya Sadak, Tahsil Sanwer, District Indore. It is said that the plaintiff is the real owner of the suit land. The brother of the plaintiff was very much close with defendant No. 1 Pramod Gupta, however, to have some loan against the said land, some blank papers were signed by the plaintiff. The defendant No. 1 executed an unregistered power of attorney on those papers and on the basis of such power of attorney, he executed a sale-deed in favour of defendant No. 2 Hemant Sharma. Later on, defendant No. 2 sold the said property to defendants No. 3 and 4 Smt. Seema Mishra and Smt. Jyoti Maheshwari respectively. Thereafter, a suit was filed seeking declaration and permanent injunction along with the application of temporary injunction. During the pendency of the said suit, the property has further been sold in favour of defendant No. 6 by defendants No. 3 and 4 on 28-4-2006. The application for temporary injunction filed by plaintiff/appellant was rejected on the pretext that the appellant is not having any prima facie case, balance of convenience and irreparable loss, therefore she is not entitled to get any temporary injunction against alienation or to protect her possession. On execution of the sale-deed dated 28-4-2006 during pendency of the suit, the possession was delivered to defendant No. 6 on account of not granting the temporary injunction, however, an application for amendment has also been filed before the trial Court seeking the relief of restoration of possession, which is pending.

(3.) After going through the order impugned passed by the trial Court it appears that, the injunction has been refused by the trial Court solely on the basis that the power of attorney was executed long back and, on the basis of such power of attorney, defendant No. 1 has executed a sale-deed in favour of defendant No. 2. Thereafter, another sale-deed was executed by defendant No. 2 in favour of defendants No. 3 and 4. In such circumstances, it cannot be presumed that plaintiff was unaware of having some power of attorney in favour of defendant No. 2. Now the property has been sold to defendant No. 6 during pendency. In the circumstances, the delay defeats equity, it cannot be said that the plaintiff is having a prima facie case in her favour. It is further said that the balance of convenience and irreparable loss do not lie in her favour, therefore, plaintiff is not entitled to get temporary injunction in the facts and circumstances of the case, even to restrain the defendants from alienation.