AYAZ MASTER Vs. REHANA MIRZA

JUDGEMENT

(1.) By way of this writ petition, the defendants-petitioners have assailed the order dated 30/11/2017 whereby the learned trial court has allowed the application filed by the plaintiffs- respondents under Order 11 Rule 12 & 14 read with Section 151 CPC.

(2.) The defendants-petitioners submit that the plaintiffs- respondents had preferred a suit for partition and permanent injunction against the defendants-petitioners alleging that the plaintiff-respondent no.1 (Smt. Rehana Mirza) is second wife of late Master Riyaz Ahmed who is father of defendants-petitioners no.1 & 2 from the first wife while the plaintiffs-respondents no.2 & 3 are from the wedlock of plaintiff-respondent no.1 and late Master Riyaz Ahmed. The plaintiff-respondent no.1, therefore, has claimed her share in the properties of her late husband Mater Riyaz Ahmed. The application was therefore, moved by the plaintiffs-respondents under Order 11 Rule 12 & 14 read with Section 151 CPC in the proceedings relating to temporary injunction praying for calling the original record i.e. the original documents and title deeds relating to House No.861, House No.873 and House No.1119 of the colonies and areas mentioned therein.

(3.) Learned Senior Counsel for the defendants-petitioners submits that such an application under Order 11 Rule 12 & 14 CPC was not maintainable in the proceedings of temporary injunction and such application could only be moved in the original proceedings namely; the main suit. The temporary injunction application proceedings cannot be said to be original in nature and therefore, the application ought to have been rejected by the learned trial court. It is further submission of the defendants- petitioners that the application has been moved to delay the proceedings. The issues have already been framed and in terms of the issues, the onus was upon the plaintiffs-respondents to prove that the houses as mentioned in the plaint were belonging to late Master Riyaz Ahmed. Learned Senior Counsel submits that the order dated 30/11/2017 be quashed and set aside. In support of his submissions, learned Senior Counsel for the defendants- petitioners relies on the judgment passed by this Court in Cimmco Ltd. Vs. Shyam Mohan Jai: AIR 1997 (Raj.) 180; judgment passed by Madhya Pradesh High Court (Jabalpur Bench) in M/s. Bhatia Distributors and others Vs. Bosch Limited and another: 2012(2) MPHT 107; judgment passed by Gujarat High Court in Life Insurance Corporation of India Vs. Vasant N. Modi (Civil Revision Application No.1900 of 1999), decided on 28/06/2001; judgment passed by Andhra Pradesh High Court in Medam Sankaranarayan Vs. Gaddala Tripathi Tao and ors.: AIR 1971 (AP) 332 and the judgment passed by Gauhari High Court in Hareshwar Roy Vs. Mustt. Monowara Begum and ors: AIR 2010 (Gau) 22.