NAMITA SHARMA Vs. BALKRISHAN SHARMA

JUDGEMENT

(1.) THE present appeal filed by the appellant -plaintiff is directed against the order dt. 03.05.2012 passed by the Additional District Judge No. 6, Jaipur City, Jaipur (hereinafter referred to as "the trial Court") in Civil Misc. Application No. 66/2012 (211/2012), whereby the trial Court has dismissed the application of the appellant -plaintiff seeking temporary injunction under Order 39 Rule 1 & 2 of C.P.C. The facts of the present case in nut -shell are that the appellant -plaintiff happens to be the daughter of the respondent Nos. 1 & 2, and sister of the respondent No. 3. The appellant -plaintiff has filed the suit seeking partition, declaration and perpetual injunction in respect of the suit property, claiming her 3/4th share in the suit property, which according to her is a coparcenary property. According to her, the respondent No. 1 had executed an agreement dt. 29.11.1986 in favour of the respondent No. 4 in respect of the suit property, for which the respondent No. 4 had filed a suit seeking specific performance of the said agreement in the year 1995. The said suit came to be decreed exparte on 18.08.2007. The said decree was confirmed by the High Court as well as by the Supreme Court in the proceedings filed by the respondent No. 1. The case of the appellant -plaintiff is that the said property being the coparcenary property, she had a right by birth, and her father could not have agreed to sell the same to the respondent No. 4, and that the decree for specific performance passed in the earlier suit was not binding to her. The appellant -plaintiff had also filed an application under Order 39 Rule 1 & 2, seeking temporary injunction for restraining the respondent No. 4 from executing the said decree, and also from dispossessing her from the suit property, and had prayed for maintaining status -quo as regards the suit property. In the said temporary injunction application, the respondent Nos. 1, 2 & 3 had filed the reply, supporting the case of the appellant -plaintiff, however the respondent No. 4 has resisted the same contending inter alia that the suit was filed by the appellant at the instance of the respondent No. 1, with a view to defeat the decree passed in the earlier suit. The trial Court after hearing the learned counsels for the parties, has dismissed the said temporary injunction application vide the impugned order, against which the present appeal has been filed.

(2.) THE learned Senior Counsel Mr. M.M. Ranjan assisted by learned counsel Mr. Arun Singh Shekhawat for the appellant taking the Court to the provisions contained in Section 6 of the Hindu Succession Act 1956, submitted that in view of the amendment, which has come into effect from 09.09.2005, the daughter of the coparcener also has the right by birth in the coparcenary property and the property in question being coparcenary property, the agreement executed by her father i.e. respondent No. 1 was not binding to her. According to Mr. Ranjan, the appellant -plaintiff has claimed 3/4th share in the suit property, the respondent Nos. 2 & 3 having disclaimed their rights in favour of the appellant, the appellant could not be deprived of her share in the suit property. Mr. Ranjan, further submitted that the market value of the property is more than 1 crore.

(3.) HAVING regard to the submissions made by the learned Senior Counsels for the parties, and to the impugned order passed by the trial Court, it appears that the suit has been filed by the appellant -plaintiff in March 2012 seeking partition, and permanent injunction in respect of the suit property, as also the declaration that the decree passed in the earlier suit by the Court was not binding to her. It is pertinent to note that after the passing of the exparte decree on 18.08.2007 by the trial Court, the same was sought to be challenged by the respondent No. 1 by filing the appeal under Sec. 96 of C.P.C. as well as by filing application under Order IX Rule 13 of C.P.C. However, in both the proceedings, the respondent No. 1 could not succeed in the High Court and in the Apex Court, and thereafter, the present suit was filed by the appellant -plaintiff. Under the circumstances, it prima facie transpires that the suit has been filed by the appellant -plaintiff with a view to defeat the decree passed in favour of the respondent No. 4. It is true that after the amendment in Section 6 of the Hindu Succession Act, the daughters of a coparcener would have right in the coparcenary property, however in the facts of the present case, the appellant having remained silent for so many years after the passing of the exparte decree and having filed the suit only when the respondent No. 1 i.e. her father lost the proceedings upto the Supreme Court, the suit of the appellant -plaintiff appears prima facie barred by delay, latches and acquiescence. It cannot be gainsaid that the relief of injunction is an equitable remedy, and the delay defeats the equity. In that view of the matter, the Court does not find any substance in the present appeal.