Madhya Pradesh High Court
Virendra Kumar Sahu vs The State Of Madhya Pradesh on 26 August, 2019
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
THE HIGH COURT OF MADHYA PRADESH
1
MP No. 3115/2019
(Virendra Kumar Vs The State of M.P. & others)
Gwalior, Dated :26/08/2019
Shri Rishikesh Bohre, learned counsel for the petitioner.
Shri Purhottam Pandey, learned Government Advocate for
respondent No.1/State.
Heard on the question of admission.
In this petition under Article 227 of the Constitution of India, petitioner has assailed the legality, validity and propriety of the order dated 09/10/2014 ( Annexure P-2) whereby application under Order 39 Rule 1and 2 read with Section 151 of the CPC has been dismissed. The petitioner also assails the order dated 27/04/2019 passed in Misc. Appeal No. 13/2019 by 5 th Additional District Judge, Guna (M.P.) has affirmed the order of the Trial Court.
Brief facts leading to filing of this case are that petitioner/plaintiff filed a suit before the Civil Court seeking declaration of title and permanent injunction in respect of the suit shop situated in the public market in village Jamner District Guna (M.P.). The suit shop was constructed by the plaintiff/petitioner's father Shri Harinarayan in between years 1950-60 at Survey No.
154. Since then, father of the plaintiff/petitioner are in possession THE HIGH COURT OF MADHYA PRADESH 2 MP No. 3115/2019 (Virendra Kumar Vs The State of M.P. & others) of the suit shop which is the only source of income for him. Respondent Nos. 2 and 3 have encroached and raised construction after demolishing the quarters of PHE Department situated at behind the suit shop and have also constructed the balcony over the roof of the suit shop. When the petitioner stopped the respondent Nos. 2 and 3 from raising said construction, they threatened the petitioner to demolish the suit shop.
Learned Trial Court rejected the application on the ground that plaintiff/petitioner is unable to show that suit shop is in his possession. No documents i.e. Khasara Panchshala etc have been filed in support of his claim. Plaintiff/petitioner has occupied the shop in the capacity of encroacher. Moreover, proceedings under Section 248 of the M.P. Land Revenue Code is already in progress for removal of encroachment. In such circumstances, no injunction can be granted to the petitioner. Accordingly, the Trial Court rejected the application.
Learned counsel for the petitioner contended that both the orders passed by the Courts below is illegal, without jurisdiction and contrary to law. The Courts below over looked the fact that it THE HIGH COURT OF MADHYA PRADESH 3 MP No. 3115/2019 (Virendra Kumar Vs The State of M.P. & others) is an admitted position that petitioner is in possession of the suit shop and local investigation under Order 26 Rule 9 of the CPC has been ordered, in such situation application ought to have been allowed. Due to non grant of injunction, petitioner would suffer irreparable loss, hence, this petition be allowed setting-aside the order passed by both the courts below.
Per contra, learned counsel for respondent No.1 stated that both the courts below have come to the conclusion that petitioner has encroached over the government land, therefore, he can not claim injunction in respect of the suit shop where petitioner failed to show his title. Moreover for granting injunction three basic ingredients is that :- prima-facie case, balance of convenience and irreparable injury has to be satisfied.
Having heard learned counsel for the parties. In opinion of this Court, there appears substantial force in the contentions of respondent No.1. For exercising discretion for grant of interim injunction, the following three principles are applied:-
(i) Whether plaintiff has a prima facie case;
(ii) Whether balance of convenience is in favour of the petitioner THE HIGH COURT OF MADHYA PRADESH 4 MP No. 3115/2019 (Virendra Kumar Vs The State of M.P. & others) plaintiff;
(iii) Whether the petitioner/plaintiff would suffer irreparable injury, if temporary injunction is declined.
The Courts below have exercised the jurisdiction to deal with the prayer on the aforesaid sound principle of law. Hence, I do not find any apparent error committed by the courts below so as to invoke inherent jurisdiction under Article 227 of the Constitution of India. Petition being without any merit and substance, fails and is hereby dismissed.
It is made clear that the findings in this order shall not affect the merits of the case before the trial Court in any manner.
The Trial Court is directed to dispose the suit as expeditiously as possible.
(S.A.Dharmadhikari) JUDGE Prachi PRACHI MISHRA 2019.08.30 17:39:57 +05'30'