Rajasthan High Court - Jodhpur
Anand Kumar Bhansali vs Anil Kumar Bhansali on 13 February, 2023
Author: Rekha Borana
Bench: Rekha Borana
[2023/RJJD/004944]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1418/2022
Anand Kumar Bhansali S/o Late Paras Singh Bhansali, Aged
About 64 Years, R/o 7355, SW 96 Street Miami, Florida 33156
(USA) through his oower of attorney holder Sh. Kamal Prakashji
Rathi, S/o Shri Gopi Kishanji Rathi Aged 66 Years, R/o A-19,
Nulite Colony, Near Kamal And Company, Tonk Road, Jaipur
302018 (Raj.)
----Appellant
Versus
1. Anil Kumar Bhansali S/o Late Paras Singh Bhansali, R/o
D-42, Shastri Nagar, Jodhpur.
2. Smt. Manju Bhansali W/o Anil Kumar Bhansali, R/o D-42,
Shastri Nagar, Jodhpur.
3. Vaibhav Bhansali S/o Anil Kumar Bhansali, R/o D-42,
Shastri Nagar, Jodhpur.
4. Smt. Rajshree Bhansali W/o Vaibhav Bhansali, R/o D-42,
Shastri Nagar, Jodhpur.
5. Smt. Subhadra Mehta W/o Shri Ashok Mehta, R/o Trimurti
Kohinoor Garden Apartment, Flat No. A-26, Shyam Vihar
Dadawari Road, Sanganer, Jaipur 302029.
6. State Bank Of India, Branch Jaljog Circle, Jodhpur
Through Branch Manager.
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 1733/2022
Smt. Subhadra Mehta W/o Shri Ashok Mehta, Aged About 67
Years, R/o Trimurti Kohinoor Garden Apartment, Flat No. A-26,
Shyam Vihar Dadawari Road, Sanganer, Jaipur 302029.
----Appellant
Versus
1. Anil Kumar Bhansali S/o Late Paras Singh Bhansali, R/o
D-42, Shastri Nagar, Jodhpur.
2. Smt. Manju Bhansali W/o Anil Kumar Bhansali, R/o D-42,
Shastri Nagar, Jodhpur
3. Vaibhav Bhansali S/o Anil Kumar Bhansali, R/o D-42,
Shastri Nagar, Jodhpur
(Downloaded on 13/02/2023 at 10:38:56 PM)
[2023/RJJD/004944] (2 of 12) [CMA-1418/2022]
4. Smt. Rajshree Bhansali W/o Vaibhav Bhansali, R/o D-42,
Shastri Nagar, Jodhpur
5. Anand Kumar Bhansali S/o Late Paras Singh Bhansali,
7355, SW 96 Street Miami, Florida, 33156 (USA)
6. State Bank Of India, Branch-Jaljog Circle, Jodhpur
Through Branch Manager.
----Respondents
For Appellant(s) : Mr. O.P. Mehta with Mr. Vasudeo Gaur
Mr. Muktesh Maheshwari with Mr. Aidan
Choudhary
For Respondent(s) : Mr. Bharat Vyas, Sr. Advocate with
Mr. Rahul Joshi (Through VC)
Mr. Vikas Balia, Sr. Advocate with
Mr. Hemant Ballani
HON'BLE MS. JUSTICE REKHA BORANA
Judgment 13/02/2023 Both the appeals arise out of the order dated 05.05.2022 and hence the same have been heard and are being decided together.
Vide the impugned order dated 05.05.2022, the Additional District Judge No.7, Jodhpur Metropolitan (hereinafter referred to as 'the learned Trial Court') has proceeded on to pass an ad interim order which reads as under :
"bl voLFkk esa oknxzLr lEifRr dks lajf{kr o lqjf{kr fd;k tkuk U;k;ksfpr izrhr gksrk gS ijarq bl voLFkk esa bl U;k;ky; dks bl fcanq ij fopkj djuk gS fd bl foHkktu ds nkos dk vafre :i ls fu.kZ; gksus esa] ftlesa nksuksa i{kksa dh vihy izLrqr djus ds vf/kdkj Hkh 'kkfey gS] vusd o"kZ yxus dh vk'kadk gSA vr% bl voLFkk esa vizkFkhZx.k la[;k 01 ls 04 dks tfj;s varfje fu"ks/kkKk ikcan fd;k tkrk gS fd os oknxzLr lEifRr dk jgu] cS;] foØ; ;k fdlh vU; izdkj ls LokfeRo dk varj.k fdlh rhljs i{kdkj dks u djsa] bl ij (Downloaded on 13/02/2023 at 10:38:56 PM) [2023/RJJD/004944] (3 of 12) [CMA-1418/2022] yksu bR;kfn ysdj fdlh Hkkj dk l`tu u djsaA vizkFkhZx.k la[;k 01 ls 04 bl lEifRr dk iwoZor mi;ksx@miHkksx O;oLFkk djus ds fy, iw.kZr% Lora= gSA bl lEifRr esa fdlh izdkj dh ejEer vkfn djus ds fy, Hkh os iw.kZr% Lora= gSaA ;fn muds }kjk bl nkos ds yafcr jgus ds nkSjku blesa fdlh izdkj dk dksbZ fuekZ.k dk;Z fd;k tkrk gS] rks blds vk/kkj ij muds i{k esa fdlh vf/kdkj dk l`tu ugha gksxkA ;fn nkos ds yafcr jgus ds nkSjku bl lEifRr dks fdlh rhljs i{kdkj dks fdjk;s ij fn;k tkrk gS rks fdjk;snkj dks bl nkos ds vafre fu.kZ; ds v/khu gh vf/kdkj izkIr gksaxsA "
The present appeals have been preferred by the plaintiff & defendant No.5 respectively against the above order only to the extent it permits the respondents No.1 to 4 to raise construction over the disputed property and to let it out although with certain conditions.
The brief facts of the case are as under :
A suit for partition, rendition of accounts and permanent injunction was preferred by the plaintiff-Anand Kumar Bhansali on 04.05.2022. Along with the suit, an application under Order XXXIX Rule 1 & 2, CPC with a prayer for interim relief was also preferred.
The notices of the temporary injunction application were served on the defendants in the evening of the same date and the matter was directed to be posted on the very next date. On 05.05.2022, after hearing both the parties, the learned Trial Court proceeded on to pass the ad interim order as reproduced above. Vide the order impugned, the learned Trial Court has restrained the defendants no.1 to 4 from creating any third party interest in the suit property by any mode of transfer i.e. mortgage, sale etc. However, the defendants have been permitted to use the suit property in the manner they were using it previously. With the said restraint order, the learned Trial Court proceeded on to hold (Downloaded on 13/02/2023 at 10:38:56 PM) [2023/RJJD/004944] (4 of 12) [CMA-1418/2022] that the defendants would be free to take up repairs etc. in the property with a rider that if any construction work is taken up, no right because of the said construction would be created in their favour. Further that if the property is let out to any third party during pendency of the suit, the tenant/third party would be entitled to the rights accrued only till disposal of the present suit.
It is against the above mentioned order that the present appeals have been preferred by the plaintiff as well as defendant no.5 only to the extent whereby the learned Trial Court has permitted the defendants no.1 to 4 to raise construction as well as to let out the suit property.
Although the prayer made in the present appeals is limited to the above mentioned extent, the arguments raised by both the parties before this Court were totally on the different footing. During the course of arguments, it has been argued that subsequent to the passing of the order impugned dated 05.05.2022, the defendants-respondents have taken up the commercial activities in the premises and therefore, they be restrained from using the property for commercial purposes.
Vide interim order dated 21.10.2022, it was directed as under :
"Till next date of the hearing, both the parties shall maintain status quo regarding house in question. However, it is made clear that the respondents shall not allow the property to be used for commercial purposes and the same shall not be let out to any person."
Arguments qua the above mentioned order dated 21.10.2022 have also been raised by learned counsel for the (Downloaded on 13/02/2023 at 10:38:56 PM) [2023/RJJD/004944] (5 of 12) [CMA-1418/2022] respondents with the submission that while directing to maintain status quo regarding the house in question, the Court ought not to have restrained them from using the property for commercial purposes and from letting it out to any person as either status quo could have been maintained or the restraint order could have been put into operation. Both could not have operated simultaneously.
Learned counsel Mr. O.P. Mehta and Mr. Muktesh Maheshwari, appearing for the appellants submitted that the learned Trial Court has exceeded its jurisdiction in permitting the defendants to raise construction and to let out the property while passing an ad interim order. It has been submitted that the learned Trial Court was not finally deciding the application for temporary injunction under Order XXXIX Rule 1 & 2, CPC and therefore, could not have granted reliefs vide the ad interim order which ultimately amounted to the final reliefs. Learned counsel further submitted that so far as the Order impugned permits the defendants to use the property in the nature and manner it was being used till that date, the plaintiff cannot and is not aggrieved of the same but the further permission to raise construction and let it out were clearly in excess of jurisdiction.
It has further been submitted by learned counsel for the appellants that after passing of the order impugned dated 05.05.2022, the defendants, in the garb of the order dated 05.05.2022, have put the residential house to commercial use which is totally in contempt of the order dated 05.05.2022 whereby they were permitted to use the property only in the manner and nature the same was used till that date. Learned counsel further submitted that this Court, in appellate jurisdiction, (Downloaded on 13/02/2023 at 10:38:56 PM) [2023/RJJD/004944] (6 of 12) [CMA-1418/2022] is very well within its authority and competence to pass appropriate orders to restrain the defendants from commercial user of the property which is an act subsequent to the order impugned. In support of their submissions, learned counsel relied upon a decision of the Hon'ble Apex Court rendered in the matter of Rameshwar and Others Vs. Jot Ram and Others; AIR 1976 SC 49.
Learned counsel for the appellants further submitted that admittedly the plaintiff as well as the defendants are the coparceners and it is the settled proposition of law that each and every coparcener is the joint owner of unpartitioned property and further that none of the coparceners can be permitted to change the nature of the property. Admittedly, the suit property is a residential house which has illegally been put to commercial use by the defendants and therefore, the said act of the defendants deserves to be curtailed. It has also been submitted that the issue of commercial user of the property was nowhere in consideration before the learned Trial Court on 05.05.2022 and therefore, the said fact was not taken into consideration. Admittedly, the commercial user of the property has been pleaded by the respondents also for the first time before this Court in reply to the stay petition only and therefore, the said fact deserves consideration by this Court.
Per contra, learned Senior Counsels Mr. Bharat Vyas and Mr. Vikas Balia appearing for the respondents no.1 to 4 submitted that this Court cannot go into the question of commercial user of the property as no relief qua the same has been prayed for in the present appeals. Learned counsel submitted that the Court cannot (Downloaded on 13/02/2023 at 10:38:56 PM) [2023/RJJD/004944] (7 of 12) [CMA-1418/2022] travel beyond the relief prayed for by the party and therefore, in absence of any relief qua commercial user of the property, this Court is not required to go into the said issue. Further, the said issue was not raised before the learned Trial Court and therefore also the same cannot be taken into consideration at this appellate stage.
On the factual aspect, learned senior counsel submitted the property had been put to commercial use even before filing of the suit and therefore, the commercial use of the property is totally in consonance with the order dated 05.05.2022 whereby the learned Trial Court has permitted the defendants to use the property in the nature and manner it was being used till that date. So far as the reliefs of raising construction and letting out the property is concerned, learned counsel submitted that it is clear even from a perusal of the Commissioner Report, called for by the learned Trial Court subsequently, that no new construction has been raised on the suit property. Only renovation and modification had been made for the purposes of commercial use. Learned Senior Counsel Mr. Bharat Vyas further submitted that he is under instructions to give an undertaking that till the disposal of the temporary injunction application, no new construction would be raised by the defendants on the said property and the same would not be let out to any one. With the said submissions, learned counsel prayed for rejection of the present appeals.
Heard learned counsel for the parties and perused the material available on record.
A bare perusal of the order impugned makes it clear that the same was an ad interim order passed on the very next date of the (Downloaded on 13/02/2023 at 10:38:56 PM) [2023/RJJD/004944] (8 of 12) [CMA-1418/2022] filing of the suit. Admittedly, till that date, no reply whatsoever was filed by the defendants and it was only the oral arguments which were led before the learned Trial Court. The prayer made by the plaintiff in his temporary injunction application were as follows :
"vr% izkFkZuk i= is'kdj fuosnu gSa fd nkSjkus lquokbZ okn vLFkkbZ fu"ks/kkKk cgd izkFkhZ fo:) vizkFkhZ la[;k 1 ls 4 bl vk'k; dh lkfnj QjekbZ tkosa fd vizkFkhZ la[;k 1 ls 4 okn i= ds in la[;k 7 o 9 esa of.kZr la;qDr vfoHkkftr vpy lEifRr;ksa dks fdlh Hkh izdkj ls [kqnZ cqnZ] cspku] eqUrfdy] gLrkUrj.k ugh djs] u gh fdlh izdkj dk fuekZ.k] ifjorZu] ifjo/kZu djsa] u gh fdlh cSad foRrh; laLFkku esa fxjoh] vMk.ks] Hkksxykos j[ks vkSj mijksDr lEifRr;ksa dks fdlh vU; dks fdjk;s ij ugh ns o bldk dCtk ikVZ foFk o vU; fdlh Hkh rjhds ls fdlh vU; fdlh O;fDr] l[l laLFkk dks lqiqnZ ugha djsa vkSj cxSj okf.kfT;d :ikUrj.k djok;s bl tk;nkn o blds fdlh Hkh Hkkx dk okf.kfT;d mi;ksx miHkksx ugha djsa vkSj mijksDr lEifr;ksa dh fLFkfr ;Fkkor cuk;s j[ksaA blh izdkj okn i= ds in la[;k 9 ls 23 esa of.kZr la;qDr vfoHkkftr py lEifr;ksa dks Hkh vizkFkhZ la[;k 1 vFkok vizkFkhZ la[;k 2 ls 4 ukWfeuh vFkok la;qDr uke fy[kokus ds dkj.k fdlh Hkh izdkj ls [kqnZ cqnZ ugha djsa] vkSj u gh dksbZ py lEifr cSad ;k foRrh; laLFkk ls izkIr djsa vkSj u gh dksbZ py lEifr fdlh Hkh izdkj ls fdlh ds i{k esa gLrkUrfjr djsa vkSj u gh mDr la;qDr vfoHkkftr py lEifr;ksa ls fdlh Hkh izdkj dh dksbZ jkf'k izkIr djsaA vU; mfpr vkns'k tks izkFkhZ ds i{k esa gks lkfnj Qjek;k tkosaA"
As observed above, no reply to the temporary injunction application was filed by that date nor was any counter claim preferred on behalf of the defendants. Therefore, the court was only required to consider whether the interim relief as prayed for by the plaintiff could have been granted on the said date may be in form of an ad interim order. The said ad interim relief was only to be granted till the disposal of the application for temporary injunction preferred under Order XXXIX Rule 1 & 2, CPC. A perusal (Downloaded on 13/02/2023 at 10:38:56 PM) [2023/RJJD/004944] (9 of 12) [CMA-1418/2022] of the order impugned shows that the learned Trial Court has proceeded on to pass the same as if it was deciding the temporary injunction application finally. The reliefs as granted have been mentioned to be till the final disposal of the suit which, in the opinion of this Court, could not have been granted. The ad interim relief can only be granted till the final disposal of the temporary injunction application and not till disposal of the suit. Moreover, the reliefs as granted regarding the permission to raise construction and further to let out the property too, in the opinion of this Court, could not have been granted at the ad interim stage and that too, without there being any prayer for the same on behalf of the defendants. A perusal of the reliefs as granted makes it clear that the same amounts to the final reliefs being granted with the presumption as if no hearing on the temporary injunction application is to be taken up.
Further, a perusal of the order impugned also reveals that the same is self-contradictory and therefore also, cannot be upheld. On the one hand, the learned Trial Court has proceeded on to restrain the defendants from creating any third party rights in the suit property and on the another hand, permitted the property to be let out. The said two directions are totally contradictory as letting out the property essentially means creating third party rights in the property.
Further, the learned Trial Court has proceeded on to direct that if the property is let out, the tenant would be entitled to the tenancy rights whatsoever only till disposal of the present suit. In the specific opinion of this court, firstly the said order is clearly in excess of jurisdiction as no tenant can be bound by any order in a (Downloaded on 13/02/2023 at 10:38:56 PM) [2023/RJJD/004944] (10 of 12) [CMA-1418/2022] proceeding wherein he/she is not a party. Secondly, any tenant would not be governed by the Civil Court and therefore too, his rights cannot be curtailed by an order passed in some proceedings between two parties to which he is a stranger.
Further, it is clear on record that till the date of passing of the order dated 05.05.2022, the property was not let out to any one and by the order impugned, rather an extra right/privilege has been granted to the defendants which was not even prayed for by them. The said order, that too at ad interim stage, is clearly in excess of jurisdiction and therefore, cannot be upheld by this Court.
So far as the issue of commercial use of the suit property is concerned, it is crystal clear from a perusal of the reply to the stay petition as preferred by the respondents in the present appeal that the commercial user of the property has been undertaken after passing of the order impugned i.e. 05.05.2022. Admittedly, the Hawan Pooja was done on 19.08.2022, trials and soft launch were undertaken in first week of September 2022 and the opening of the restaurant was held on 26.09.2022. The Commissioner Report of 10.05.2022 reveals that repair/renovation work was being undertaken in the premises but no commercial activity has been mentioned or taken note of.
Admittedly, a prayer to restrain the defendants from commercial use of the suit property has been made in temporary injunction application which was apprehended by the plaintiffs on that date. But as is clear from the record, till that date, the commercial use of the property had not been undertaken in effect by the defendants and therefore, the relief qua the same seems (Downloaded on 13/02/2023 at 10:38:56 PM) [2023/RJJD/004944] (11 of 12) [CMA-1418/2022] not to have been considered by the court at that ad interim stage. The commercial user of the property is definitely a subsequent fact. On the date when the order impugned dated 05.05.2022 was passed, the property had not been put to commercial use in effect and therefore, the commercial user of the property after passing of the order dated 05.05.2022 is clearly in defiance of the order impugned dated 05.05.2022 which permitted the defendants to use the property in the manner and nature it was being used prior to that date. But then, firstly, this Court is not in contempt jurisdiction and secondly, although argued, no relief regarding the said user has been prayed for in the present appeals even by any subsequent application or amendment in the original appeal. There is no dispute on the proposition of law that subsequent acts, if any, may be taken into consideration by the appellate Court while deciding the issues of prima facie case and balance of convenience. But then, the subsequent acts have to be pleaded and a relief qua the same has to be prayed for. The prayer as made in the present appeals is only for setting aside the impugned order to the extent it granted permission to the defendants to raise construction and to let out the property. So far as these two reliefs are concerned, as held in the preceding paras, the findings of the learned Trial Court to said extent cannot be upheld being in excess of jurisdiction. Moreover, learned counsel for the respondents has also undertaken not to raise any construction or to let out the property till the final disposal of the temporary injunction application.
Before summing up, it is essential to clarify that the judgments as cited at Bar have not been taken into consideration (Downloaded on 13/02/2023 at 10:38:56 PM) [2023/RJJD/004944] (12 of 12) [CMA-1418/2022] by this Court because of the facts, firstly, the learned counsel for the respondents have themselves undertaken not to raise any construction or let out the suit property till the final disposal of the temporary injunction application and secondly, the Court has not entertained the present appeals qua any relief over and above the above mentioned two reliefs.
In the totality of the facts, leaving the issue of the subsequent commercial use of the property to be pleaded and agitated before the learned Trial Court, the impugned order dated 05.05.2022 is set aside to the extent it permits respondents No.1 to 4 to raise construction on the suit property or to let it out. Qua the other reliefs, the same is upheld.
Accordingly, the appeals stand disposed of.
The stay applications and all the pending applications also stand disposed of.
(REKHA BORANA),J Vij/-
(Downloaded on 13/02/2023 at 10:38:56 PM) Powered by TCPDF (www.tcpdf.org)