LAWS(MPH)-2012-12-101

KOKSINGH Vs. PREM BAI

Decided On December 03, 2012
KOKSINGH Appellant
V/S
PREM BAI Respondents

JUDGEMENT

(1.) In this petition filed under Article 227 of the Constitution of India, the petitioner/defendant has challenged the order dated 29.9.2012 whereby in the Miscellaneous Appeal preferred by the plaintiff the Court below has granted protection to the plaintiff. The plaintiff filed a suit for declaration and permanent injunction (Annexure P-2). The Court below heard the matter on her application under Order 39 Rule 1 & 2 C.P.C. (Annexure P-7) and did not find any ground and reason to grant interim protection/injunction. Injunction was rejected by order dated 28.7.2011 (Annexure P-9). The plaintiff/respondent preferred a Miscellaneous Appeal under order 43 Rule 1 C.P.C. before the Court below, which was decided by impugned order Annexure P-1 in favour of the plaintiff and the defendants/petitioners are directed not to interfere in the suit land and plaintiff should not be dispossessed. Alienation of property is also prohibited by the impugned order.

(2.) Shri Amit Lahoti, learned counsel for the petitioner, criticized the said order and submits that the trial Court by Annexure P-9 rightly refused the application under Order 39 Rule 1 & 2 C.P.C. He submits that for grant of injunction all the ingredients i.e. primafacie case, balance of convenience and irreparable loss should be present in favour of the plaintiff and in absence thereof, merely because of one ground/ingredient, interim relief cannot be granted. He further submits that the revenue record show that name of present petitioners are mentioned and in fact they are in possession. He further submits that Court below in passing impugned order has erred in treating the petitioner's written statement as his admission. He submits that there is no such admission as held by the Court below.

(3.) Per contra, Shri J.P.Mishra, learned counsel for plaintiff/respondent supported the order and submits that on the basis of material on record, the Court below has passed a plausible order and it is clear from the pleadings of the present petitioners in the written statement before the Court below that in the revenue record the name of plaintiff was recorded after the death of her husband Sabdal Singh. He submits that there is no illegality or perversity in the order impugned.