KAUSHAL PRASAD PANDEY Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution of India assails the order dated 02.11.2015 (Annexure-P/8) whereby miscellaneous appeal filed by respondent No. 3 under Order 43 Rule 1 of CPC was allowed by the Court below and order passed by the trial Court dated 07.10.2014 whereby application preferred by the petitioner under Order 39 Rule 1 and 2 was entertained, was set aside.

(2.) Shri Anubhav Jain, learned counsel for the petitioner submits that the petitioner filed the instant civil suit claiming declaration of title, permanent injunction and seeking declaration that order passed by the Collector dated 24.02.2013/02.08.2013 are null and void. Shri Jain submits that the trial Court passed a detailed order dated 07.10.2014 and opined that the petitioner could make out a strong prima facie case, balance of convenience is in his favour and if injunction is not granted, he will suffer irreparable loss. Thus injunction order was granted.

(3.) The Lower Appellate Court, Shri Jain submits has erred in interfering in the miscellaneous appeal. To elaborate, it is submitted that a plain reading of plaint averments shows that the factual foundation of the matter is clear that Section 319 of M.P. Municipalities Act, 1961 was not an impediment for the petitioner. Shri Jain submits that while granting the injunction order, the trial Court placed reliance on the order of Gwalior Bench in the case of Nagar Palika Parishad, Mihona V. Ramnath, 2012(II) MPWN 117. Shri Jain submits that although this judgment of Gwalior Bench is turned down by the Supreme Court, fact remains that the appellate Court was required to examine whether in the peculiar facts and circumstances of the instant civil suit, Section 319 will become a hurdle or not. The Court below mechanically interfered with the injunction order without examining the existence of necessary factual details. In addition, while deciding the validity of an injunction order, it was not open to the Lower Appellate Court to give a finding regarding maintainability of the suit. The Court below exceeded its jurisdiction and travelled beyond the scope of Order 43 Rule 1 of CPC.