GEETAMISHRA Vs. MOAT ADHIKARI KUWAR

JUDGEMENT

(1.) The plaintiff is the appellant herein. She assails an order refusing to grant injunction.

(2.) The relevant facts, as it is apparent from perusal of the impugned order as also the plaint, are as follows :

(3.) The-suit in question was filed for partition of 1/3rd share by appointing a pleader Commissioner alleging that her father Ragho Saran Sahi had three wives, that she and Defendant No. 5 were daughters of the 2nd wife, whereas Defendants 2 and 3 are her step brother and sister respectively and defendant No. 1 is her step mother (the 3rd wife of Ragho Saran Sahi, that the first wife had died issuless ; and that the third re-marriage took place after 10 years of the death of her mother. She also prayed for grant of permanent' injunction for restraining the defendants from transfering the suit properties which includes the residential house. She filed an application for grant of an interim injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure stating therein that the defendants, who are co-sharers, want to execute certain documents in connivance with lathials to jeopardise the interest of the plaintiff. Notice was issued to the defendants who filed their show cause asserting that the plaintiff and Defendant No. 5 arc not the daughters of late Ragho Saran Sahi ; that the court fee was not properly paid by the plaintiff ; that the plaintiff has got no title or possession over any portion of the suit land; that the plaintiff and defendant No. 5 are in collusion with each other ; that Defendant No. 2 to 4 received the suit properties by a deed of gift dated 18-6-1983 executed by Defendant No. 1. The court below as usual considered the three necessary ingredients namely the prima fade case, balance of convenience and irreparable injury. In Paragraph 5 of the impugned order, the court below took the view that there is a bona fide dispute and prima facie case in favour of the plaintiff. In Paragraph-6 it also recorded a finding that the defendants are not in possession of the suit land. However, the prayer of the plaintiff-appellant was rejected on the ground that she ought to have paid ad -valorem court fee under Section 7 (iv) (c) of the Court Fees Act over the valuation of her share in the suit properties. It also held that although the plaintiff has stated about the existence of Bakshisnama executed by defendant No. 1, no relief has been claimed by her for cancellation of the same. It also further held that in the said view of the matter more inconvenience will be caused if the injunction is issued than it is not issued and thus the balance of convenience is in favour of the defendants. It also took the view that the sale which may be made by defendant Nos. 1 to 4 would be hit by lis pendens and thus there is no question of irreparable loss.