Smt. Sarojbala v. Vishal

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IN THE HIGH COURT OF MADHYA PRADESH AT INDORE

BEFORE

HON'BLE SHRI JUSTICE SUBODH ABHYANKAR ON THE 28^th OF SEPTEMBER, 2022 MISC. APPEAL No. 3296 of 2021 BETWEEN:-

SMT. SAROJBALA W/O SHANTILAL PAWAR,

AGED ABOUT 82 YEARS, OCCUPATION: HOUSE

WIFE 8, PALACE ROAD, RATLAM (MADHYA

PRADESH)

.....APPELLANT

(BY SHRI RAJEEV BHATJIWALE, ADVOCATE )

AND

VISHAL S/O VIMALCHAND JI PITLIYA, AGED

ABOUT 39 YEARS, OCCUPATION: BUSINESS

RAJIV GANDHI CIVIK CENTRE, RATLAM

(MADHYA PRADESH)

.....RESPONDENT

(BY SHRI V. A. KATKANI, ADVOCATE )

This appeal coming on for judgement this day, the court passed the following:

J U D G E M E N T

Heard.

2. This miscellaneous appeal has been filed under Order 43 Rule 1 of C.P.C. against order dated 15.11.2021, passed in case No.RCSA 274/2021 by the 3^rdDistrict Judge, Ratlam whereby, in a suit filed for declaration of title and injunction, the application filed by the appellant/plaintiff under Order 39 Rule 1 & 2 of C.P.C. for

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temporary injunction has been rejected.

3. In brief, the facts of the case are that the aforesaid suit has been filed by the appellant/plaintiff in respect of the land ad- measuring 89 square feet adjacent to the plot of the defendant, which according to the plaintiff has been encroached upon by the defendant and has also started constructing over it. In the civil suit, an application under Order 26 Rule 9 of CPC for issuance of commission to demarcate the property was also filed by the plaintiff, however, as contended by the counsel for the petitioner, the learned Judge of the trial Court, without first deciding the application of appointment of Commissioner for the purposes of demarcation of the property, has decided the application for temporary injunction, rejecting the same stating that the plaintiff has not been able to prove prima facie case that the defendant has encroached upon his plot.

4. Counsel for the appellant has also submitted that in the civil suit, when the allegations of encroachments have also been made, the learned Judge of the trial Court ought to have decided the application under Order 26 Rule 9 of CPC for appointment of Commissioner to demarcate the property and only after the aforesaid demarcation, the application for temporary injunction should have been decided. It is also submitted that the appellant/plaintiff's property was purchased by the husband of the plaintiff Shantilal and thus, it cannot be said that the plaintiff has filed a frivolous suit.

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5. Counsel for the plaintiff has also relied upon certain decisions rendered by this Court in the case of Matadeen Vishwakarma Vs. Maniram Gupta reported as AIROnline 2019 MP 200; Prembai w/o Omkarlal and others Vs. Ghanshyam s/o Vallabhdas and others reported as 2010 (3) MPLJ 345; Anurag Jaiswal Vs. Collector, Khandwa and others reported as 2019 (2) MPLJ 637.

6. Shri V. A. Katkani, counsel for the respondent/defendant has vehemently opposed the prayer and it is submitted that no case for interference is made out at this stage and the application filed by the plaintiff under Order 26 Rule 9 of CPC itself is not maintainable as the same has been filed solely for the purpose of collecting the evidence. Counsel has also relied upon certain decisions Dharam Singh and another Vs. Deenanath and others reported as 2019

(4) MPLJ 32; Kamal Singh Vs. Narayan J. Acharya and others

reported as 2020 (2) MPLJ 54 and Ashok Kumar Patel and others Vs. Ram Niranjan and others reported as 2007 (III)

MPWN 123.

7. Heard counsel for the parties and perused the record.

8. In the considered opinion of this Court when an application under Order 26 Rule 9 of CPC has also been filed, in such circumstances, the application for temporary injunction ought to have been decided subsequent to the outcome of the application filed under Order 26 Rule 9 of CPC. In such circumstances, the impugned order dated 15.11.2021 cannot be sustained and is hereby set aside and the matter is remanded back with a direction to the

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trial Court to decide the application filed under Order 39 Rule 1 and 2 of CPC after deciding the application filed by the plaintiff under Order 26 Rule 9 of CPC on its own merits. So far as the decisions relied upon by the counsel for the respondent are concerned, the same are distinguishable on facts.

9. Accordingly, appeal stands allowed with the directions as aforesaid.

10. It is made clear that this Court has not reflected upon the merits of the case and the learned Judge of the trial Court shall be guided purely on the material available on record.

(Subodh Abhyankar) Judge

Pankaj