Madhya Pradesh High Court
Chakradhar Singh vs Shivbal Singh on 2 February, 2017
WP-1667-2017
(CHAKRADHAR SINGH Vs SHIVBAL SINGH)
02-02-2017
Shri P.K.Singh Sengar, learned counsel for the petitioner.
Heard on admission.
This is a petition under article 227 of the Constitution of India wherein
the petitioner/defendant no.1 has called in question the legality and
validity of the order dated 21.01.2017 passed in Civil Appeal
No.177/2017 by Additional District Judge, Nagod District Sagar, M.P
whereby the application filed by the petitioner under Order 41 Rule 5 of
the CPC (in brevity referred as CPC) has been rejected.
Facts of the present case in brief are that the respondent no.1/plaintiff
filed a civil suit against the petitioner for declaration of title, permanent injunction in respect of land no.62 area 9 Beegha 19 Viswa situated at Village Hinouta, Tehsil Nagod, District Satna. The said suit has been decreed by the judgment and decree dated 31.08.2016. Being aggrieved thereby the petitioner/defendant no.1 filed the civil appeal along with an application under Order 41 Rule 5 (CPC) for grant of stay. By the impugned order the said application has been rejected by the appellate Court where the first appeal is pending. The learned counsel for the petitioner submits that the impugned order is illegal and suffers from erroneous exercise of jurisdiction. He submitted that by the impugned order the Court below has rejected the application for grant of stay under Order 41 Rule 5 without considering the fact that the impugned order is highly prejudicial to his interest and during the pendency of the appeal, the respondent plaintiff may change/alter the nature of the suit land and therefore the impugned judgment and decree ought to have been stayed by the Court below. Upon perusal of the impugned order it is clear that the Court below while considering the application under Order 41 Rule 5 has taken into consideration that the respondent/plaintiff is in possession of the suit land since 1975. He has also mentioned in the order that the trial Court after extensive inquiry/trial, the Court has arrived at a conclusion that the plaintiff is in possession of the suit land since 1975 and therefore, the Court has declined to grant any stay.
The learned counsel for the petitioner submits that on previous occasion his application under Order 41 Rule 5 was rejected on the ground that the said application was not filed with the proper authority of the appellant, however, same could not have been a ground for rejecting the present application. The impugned order reveals that the lower appellate Court has not rejected the application under Order 41 Rule 5 of the CPC on the ground that previous application was rejected but the Court has considered the application on the merit that the possession on the suit land is of the plaintiff and relied on the findings recorded by the trial Court. The learned counsel for the petitioner could not show any evidence that petitioner is in possession of the suit land and any executable decree is passed against him which may prejudice him if the impugned decree is not stayed.
One khasra document has been filed at pg.no.50 along with writ petition. On being asked that whether this document was filed before the lower appellate Court, the counsel for the petitioner admitted this fact that the said document was not filed before the lower appellate Court. At this stage he submits that he may be granted liberty to file afresh application.
I do not find any illegality or perversity in the impugned order, hence, the present petition is dismissed, keeping in view the scope of interference under article 227 of Constitution of India as held by the apex Court in the case of Jai Singh and another Vs. MCD (2010) 9 SCC 385 and Shalini Shetty Vs. Rajendra S. Patil, (2010) 8 SCC 329.
Accordingly, the writ petition is dismissed, however, the petitioner is free to file a fresh application in accordance with law, if so advised.
(VIJAY KUMAR SHUKLA) JUDGE anu