IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR JUDGMENT 1. SB CIVIL MISC. APPEAL NO.1506/2010. M/s Cosmos Buildwell Pvt. Ltd. Vs. Laxman Singh & ors. 2. SB CIVIL MISC. APPEAL NO.1507/2010. Bhagwati Singh & ors. Vs. Laxman Singh & anr. DATE OF ORDER: 19th May, 2010. HON'BLE MR.JUSTICE S.P.PATHAK Mr. N.K. Maloo ) for appellant in Appeal no.1506/2010. Mr. Nitin Jain ) Mr. G.K. Garg for appellants in appeal no.1507/2010. Mr. S.S. Hora for respondents-caveator. BY THE COURT:
These two misc. appeals have been filed under Order 43 Rule 1(r) of the Code of Civil Procedure against the order dated 12.5.2010 passed by the District Judge, Sawai Madhopur in Civil Misc. Application no.56/2009 thereby allowing the application of respondents under Order 39 Rule 1 & 2 CPC.
The facts giving rise to the present appeals are that plaintiff-respondent Bhagwati Singh filed a suit for injunction in the trial court on the basis that the suit property is a joint family undivided property.
It was averred that no relief was being claimed against the defendant-respondents, namely; Smt. Jayshree Devi and Smt. Devendra Kumari in the suit. M/s. Cosmos Buildwell Pvt. Ltd. was one of the defendants who claims that the disputed property was purchased by it from plaintiff-respondent no.2 Bhagwati Singh and defendant-respondent nos.3 and 4. A temporary injunction application under Order 39 Rule 1 and 2 was filed along with the suit.
Reply to the application was filed by the appellant.
The learned trial court vide impugned order passed injunction restraining the appellant from entering in the suit premises and further from making any construction on the suit property so that nature of the suit property is not changed. Against the above order, present appeal was filed.
I have heard learned counsel for the appellant as well as learned counsel for respondents.
It has been contended by the learned counsel for the appellant that in the instant case the property is joint family property, therefore, all the family members have their shares in the property. It is also contended that the plaintiff-appellant Bhawati Singh and respondent nos. 3 and 4 have sold their shares to M/s Cosmos Buildwell Pvt. Ltd. under registered sale-deeds, therefore, appellant M/s Cosmos Buildwell Pvt. Ltd. is entitled to make construction on the purchased property. It is contended that the learned trial court without considering prima-facie case, balance of convenience and irreparable injury has passed order in a mandatory form restraining the appellant for their entering and also for making construction on the disputed property without assigning reasons. It has also been contended that the trial court has only stated facts while disposing of the injunction application and at page 7 of the impugned order only observations have been made to the effect that during the course of trial the matter relating to adoption of Bhagwati Singh is to be decided, therefore, the appellants herein were required to be restrained by passing impugned order. It is contended that the material placed before the trial court was not at all discussed, therefore, the order requires to be set aside.
On the other hand, it has been contended that appellant Bhagwati Singh filed a suit earlier for partition and in that suit the question of adoption was considered and injunction application moved in the suit was dismissed, therefore, the appellants herein are not entitled to maintain the suit. It is further contended that subsequent suits filed by Bhagwati Singh and M/s Cosmos Buildwell Pvt. Ltd. were not maintainable as Bhagwati Singh had no right in the suit property as he went in adoption and appellant M/s Cosmos Buildwell Pvt. Ltd. alleges to have purchased the disputed property from Bhagwati Singh who was having no right in the property. According to the learned counsel, the suits filed before the trial court were liable to be dismissed.
I have carefully considered the submissions made before me.
In the present matter, what appears from the reading of the impugned order is that the trial court has not discussed the material available on record and only stated the facts of the case and at page 7 in para 7 observations have been made in relation to adoption of plaintiff Bhagwati Singh and since Bhagwati Singh’s matter of adoption was required to be considered during the course of trial, therefore, passed order without discussing balance of convenience and irreparable injury in the matter restraining the appellant not to enter in the disputed property and not to make any construction in the disputed property. Thus, it appears that the trial court has not in fact considered the documents placed before it and further the order which has been passed is a cryptic order and can be termed as non-speaking order, therefore, the same is liable to be set aside. It is not necessary to comment upon the merits of the case because that may prejudice the case of either side but I am satisfied that the learned trial court was required to consider the material placed before it and was also required to pass order giving reasons in relation to prima-facie case, balance of convenience and irreparable injury, therefore, the order passed by the trial court dated 12.5.2010 requires to be set aside with the direction to the learned trial court to hear both sides and thereafter taking into consideration the material placed on record decide the application moved under Order 39 Rule 1 & 2 CPC giving reasons for arriving at the conclusion regarding prima-facie case, balance of convenience and irreparable injury and till then the parties are required to maintain status quo in relation to the suit property.
In the result, both the appeals are allowed and the order passed by the trial court dated 12.5.2010 is set aside. The learned trial court is directed to hear both sides and thereafter taking into consideration the material placed on record decide the application moved under Order 39 Rule 1 & 2 CPC giving reasons for arriving at the conclusion regarding prima-facie case, balance of convenience and irreparable injury. It is expected from the learned trial court to dispose of the matter of temporary injunction preferably within a period of three months. Till then, the parties are directed to maintain status quo in relation to the suit property.
(S.P.PATHAK) J.
BBLM