RAKESH PATEL Vs. YUDHISTHIR KUMAR PATEL

JUDGEMENT

(1.) HEARD on admission. This Miscellaneous Appeal under Order 43 Rule 1(r), Code of Civil Procedure 1908 is directed against the order dated 18.10.2013 passed by XVIIth Additional District Judge, Jabalpur in Civil Suit No. 57 -A/2011, whereby an application under Order 39 Rule 1 and 2 CPC has been dismissed.

(2.) SUIT at the instance of appellants is for declaration and permanent injunction in respect of Residential Unit No. 92 situated at Samdariya Green City admeasuring 986 sq. ft. The suit property as evident from the pleadings, was purchased by Smt. Radhika Bai, first wife (not mother of appellant) of Shankarlal father of the appellants/plaintiffs on 13.9.2005. She was in possession of the said property and had no issues. Radhikabai executed the will on 5.7.2010 and bequeathed the suit property to respondent/defendant Nos. 2 and 3. Radhikabai expired on 15.12.2010.

(3.) TRITE it is that while exercising the discretion for grant of an interim injunction during pendency of a suit following three tests are applied, viz., (i) whether plaintiff has prima facie case, (ii) whether balance of convenience is in favour of the plaintiff and (iii) whether the plaintiff would suffer irreparable injury. That, unless these parameters are meted out the plaintiff would not be entitled for a relief of temporary injunction during pendency of the Civil Suit. (Please see Dorab Cawasji Warden V. Coomi Sorab Warden and others: : (1990) 2 SCC 117 and Hindustan Petroleum Corporation Ltd. V. Sriman Narayan : (2002) 5 SCC 760).