DHRI DEVI Vs. GORKHA RAM

JUDGEMENT

(1.) THIS appeal is preferred by the appellant while challenging the order dt. 21.12.2012 passed by the Additional District Judge No. 3, Bikaner whereby the application preferred by the appellant under Order 39 Rule 1 and 2 C.P.C. for granting temporary injunction has been rejected. Brief facts of the case are that the appellant preferred a suit against the respondents for permanent injunction, declaration and partition under Order 7 Rule 1 C.P.C. in respect of ancestral house situated at Ward No. 26 Nokha, District Bikaner and for agricultural land situated at village Somalsar, Tehsil, Nokha, District Bikaner while alleging that the said properties are ancestral and the appellant is also having 1/5 share in the said properties which is in the joint ownership and possession of the appellant and respondents. It is alleged that the respondents No. 2 and 3 Kheraj Ram and Iswar Ram have forcibly got a release deed executed in their favour from late Asha Ram, uncle of the appellant for releasing his rights and share in respect of the ancestral house and now the respondents after demolishing the old ancestral house are raising new construction. It is also alleged that the respondents are bent upon to alienate the agricultural land situated at village Somalsar, Tehsil Nokha, District Bikaner in which the appellant is also having her 1/5 share and, therefore, a declaration regarding her share and a permanent injunction of restraining the respondents have been sought by the appellant. Along with the said suit, an application under Order 39 Rule 1 and 2 read with Section 151 C.P.C. was also preferred and the temporary injunction against the respondents had also been sought.

(2.) THE learned trial Court after hearing the parties dismissed the said application preferred for temporary injunction under Order 39 Rule 1 and 2 C.P.C. while observing that the appellant had not disclosed about the fact of pendency of a civil suit in respect of the ancestral house preferred by respondent No. 2 Kheraj Ram against the appellant and other respondents wherein the appellant has filed an Ikabali jawab Dawa (consent written statement) in favour of the respondent No. 2 Kheraj Ram and, therefore, she has not approached the trial Court with clean hands and as such she has failed to prove the prima facie case in her favour. The learned trial Court upon finding no prima facie case in favour of the appellant, vide order dt. 21.12.2012 dismissed the application for temporary injunction preferred by her.

(3.) LEARNED counsel for the appellant has argued that the learned trial Court has dismissed the said application for temporary injunction preferred by the appellant on the basis of conjectures and surmises. It is further contended by the learned counsel for the appellant that earlier suit preferred by the respondent No. 2 Kheraj Ram was on a different subject matter from the present suit filed by the appellant. It is contended that in the suit preferred by the appellant, she sought partition of the agricultural land situated in village Somalsar and, therefore, it cannot be said that the earlier suit preferred by the respondent No. 2 Kheraj Ram has any impact on the present suit. It is further contended by learned counsel for the appellant that none of the respondents has raised any allegation against the appellant for concealing any fact especially regarding the pendency of the suit preferred by respondent No. 2 Kheraj Ram then there was no occasion for the trial Court to dismiss the application of the petitioner for temporary injunction against the respondents while observing that since the petitioner has not disclosed about the pendency of the suit preferred by respondent No. 2 Kheraj Ram, she has not approached this Court with clean hands and has failed to prove prima facie case in her favour.