Madhya Pradesh High Court
Kanhaiya Lalay vs Hari Ram Soneja on 13 February, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 13 th OF FEBRUARY, 2024
WRIT PETITION No. 2163 of 2016
BETWEEN:-
KANHAIYA LALAY S/O LATE SHRI HOLA RAM SONEJA,
AGE 60 YEARS, OCCUPATION: SHOPKEEPER, RESIDENT
OF GHORPADE KA BADA HUZRAT ROAD LASHKAR
GWALIOR (MADHYA PRADESH)
.....PETITIONER
(SHRI ABHISHEK SINGH BHADORIYA - ADVOCATE FOR PETITIONER )
AND
1. HARI RAM SONEJA S/O LATE SHRI HOLA RAM
SONEJA, AGE 64 YEARS, OCCUPATION:
SHOPKEEPER RESIDENT OF SONEJA MARKET
HUZRAT ROAD DAULAT GANJ LASHKAR
GWALIOR (MADHYA PRADESH)
2. AAM JANTA NA (MADHYA PRADESH)
3. BIHARI LAL S/O LATE SHRI HOLA RAM SONEJA,
AGE 58 YEARS, OCCUPATION: SHOPKEEPER
RESIDENT OF GHORPADE KA BADA HUZRAT
ROAD LASHKAR GWALIOR (MADHYA PRADESH)
4. KU. SARLA D/O LATE SHRI HOLA RAM SONEJA,
AGE 62 YEARS, RESIDENT OF GHORPADE KA
BADA HUZRAT ROAD LASHKAR GWALIOR
(MADHYA PRADESH)
.....RESPONDENTS
( NO ONE APPEARED FOR RESPONDENTS EVEN AFTER SERVICE OF
NOTICE )
This petition coming on for HEARING this day, the court passed the
following:
ORDER
Signature Not Verified Signed by: PRACHI MISHRA Signing time: 15-Feb-24 11:20:03 AM 2 This present petition under Article 227 of Constitution of India, is directed against order dated 20-2-2016, passed by VIII Additional District Judge, Gwalior in Probate Proceeding No.43 of 2016, whereby the application filed by petitioner under Order 39 Rule 7 read with Section 151 of CPC (which should have been read as ''application under Order 39 Rule 1 & 2 of CPC'') was rejected holding the same as not maintainable.
(2) Short facts of the case are that present respondent No.1 had filed a Probate Petition with regard to ''Will'' executed on 04-08-2014 by deceased Janki Devi Wife of Late Holaram with regard to property situated at Ghorpade Ka Bada, Huzrat Road, Daulatganj, Lashkar Gwalior in his favour. In the plaint averments, it was alleged that the property in question was acquired by deceased Janki Devi from her husband and sons, namely, Pradeep Kumar and Ishwar Das and presently, the property is recorded in the names of Pradeep Kumar and Ishwar Das in the record of Corporation. Since the deceased was suffering from cancer since 2012 and was not in a position to move, therefore, she executed the aforesaid ''Will'' in favour of present respondent No.1.
(3) As and when the fact about filing of probate petition came to the knowledge of present petitioner, he submitted an objection and denied execution of ''Will'' alleging it to be forged and illegally prepared document on the ground that Late Janaki Devi was not in a position to execute any ''Will''. The entire property was not self- acquired property of deceased Janki Devi and thus, prayed for dismissal of probate petition.
(4) During pendency of aforesaid proceedings, since respondent No.1 started renovating the property in question, which was the subject- matter of pending proceedings and started dismantling the property, therefore, an Signature Not Verified application under Order 39 Rule 7 CPC (though in fact it was under Order 39 Signed by: PRACHI MISHRA Signing time: 15-Feb-24 11:20:03 AM 3 Rule 1 & 2 of CPC) was filed to the effect that respondent No.1 be directed not to alter or dismantle the property and maintain the status quo with respect to the property in question, which was the subject-matter of the probate proceedings.
(5) Reply was filed on behalf of respondent No.1 and after mis- appreciating the arguments as well as contents of the reply, the said application was dismissed as not maintainable, as the present petitioner had not filed any counter-claim in the probate proceedings and, therefore, in the light of some decision rendered by this Court, the application was dismissed. Aggrieved by the aforesaid, the present petition has been filed.
(6) Learned Counsel for the petitioner has vehemently argued that learned Trial Court has ignored the settled legal proposition of law. On perusal of Order 39 Rule 1 and 2 of Civil Procedure Code, it would be clear that Rule 1(a) provides remedy to any party with respect to any property in dispute if the said property in a suit is in danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold in execution of a decree. Since property was in danger, therefore, the defendant had filed an application for grant of injunction under Order 39 Rule 1 and 2 of CPC.
(7) It was further submitted that the occasion for filing of present application arose when respondent No.1, in order to renovate the suit property, started dismantling the same and therefore, in a way, was causing damage to the suit property. As the said action would alter the nature of property, therefore, he was required to be restrained from dismantling the suit property.
(8) To bolster his submission, he has placed reliance in the matter of Nandu and Others vs. Jamuna Bai and Others, passed on 24-06-2016 by Signature Not Verified Signed by: PRACHI MISHRA Signing time: 15-Feb-24 11:20:03 AM 4 coordinate Bench of this Court in Second Appeal No. 365 of 2006, wherein it was concluded that defendants can file an application under Order XXXIX, Rule 1(a) of CPC for injunction and the same is maintainable if the exigencies as provided under Order XXXIX, Rule 1(a) of CPC exist and, therefore, defendants, are entitled to get injunction.
(9) None for the respondents even after service of notice. (10) Heard learned Counsel for petitioner and perused the record. (11) The law with regard to maintainability of application at the behest of defendant under Order 39 Rule 1 and 2 of CPC is very clear. From bare perusal of Order 39 Rule 1 and 2 of CPC, it would be evident that Order 39 Rule 1(a) of CPC provides remedy to any party in respect of any property in dispute in a suit if is in danger of being wasted, damaged or alienated by any party to the suit or if any property in dispute in a suit is wrongfully sold in execution of a decree.
(12) The word used in Order 39 Rule 1(a) of CPC is 'any party' . If any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, the other party would be free to move an application and as in the present case, the aggrieved party is the defendant, he is capable to maintain application under Order 39 Rule 1 & 2 of CPC and for that, it was not required for the defendant to file a counterclaim /suit.
(13) Thus, the impugned order dated 20th February, 2016 rejecting the application under Order 39 Rule 1 & 2 of CPC is hereby set aside. The interim order granted by this Court on 06-04-2016 shall be in existence during pendency of probate proceedings.
(14) As it is an old matter, the Trial Court is directed to conclude the Signature Not Verified Signed by: PRACHI MISHRA Signing time: 15-Feb-24 11:20:03 AM 5 proceedings within a period of six months from today.
(15) With aforesaid observation, this petition stands disposed of.
(MILIND RAMESH PHADKE) JUDGE Prachi Signature Not Verified Signed by: PRACHI MISHRA Signing time: 15-Feb-24 11:20:03 AM