BHAGWANTIBAI Vs. RAJENDRA KUMAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner at motion stage. The petitioners / defendants have filed present petition under Article 227 of the Constitution of India agaisnt the impugned order dtd. 18/08/2021 passed by the 4th Additional District Judge, Indore in Miscellaneous Civil Appeal no. 50/2021, whereby the said appeal under under Order 43 Rule 1 of CPC filed by the respondent/plaintiff has been allowed and the temporary injunction has been granted in favour of the respondent / plaintiff.

(2.) Facts of the case in brief are that the respondent/plaintiff filed a civil suit seeking declaratory relief praying that house no. 36/1, Kachhi Mohalla, Indore ( in short " the suit property") is an anscestral property of the plaintiff and the defendants. it should be declared that respondent/plaintiff is using the shop situated in the suited property since the lifetime of his father and is the only source of earning of the family. It is also prayed that petitioner/defendants in suit may be injected from disturbing or alienating the suited property. Respondent/plaintiff has also filed an application under Order 39 Rule 1 and 2 of CPC, seeking temporary injunction on petitioners/ defendants. After hearing both the parties, 5th Civil Judge, Class-II, Indore vide order dtd. 06/07/2021, dismissed the application, therefore, the respondent/plaintiff moved an appeal agaisnt the said order before the 4th ADJ, Indore, wherein vide order order dtd. 18/08/2021, directed temporary injunction on sale and alienation of suited house in favour of the respondent/plantiff, Hence, present petition has been preferred before this Court by the petitioners/defendants.

(3.) Learned counsel for the petitioners contended that the impugned order is prima facie illegal, arbitrary and perverse and suffers from jurisdictional error apparent on the fact of record. Learned Appellate Court has grossly committed error in law and facts while passing the impugned order. By reversing the order passed by the Appellate Court in contravention of settled legal principle that discretion once exercised should not be interfered. Prima-facie case, balance of convenience and irreparable loss, all these ingredients are in favour of the petitioners/defendants and the plaintiff has no right over the suit property. Under these circumstances, learned counsel prays for setting aside the impugned order.