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Ganpati Chintaman Vs. Shiv Ram Damodar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 119 of 1961
Judge
Reported inAIR1963MP209
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rule 1
AppellantGanpati Chintaman
RespondentShiv Ram Damodar and ors.
Appellant AdvocateA.R. Naokar and ;B.G. Apte, Advs.
Respondent AdvocateG.P. Patankar and ;A.R. Naokar, Advs.
DispositionRevision allowed
Cases ReferredIn Laxman v. Nanuram
Excerpt:
- - 3. it is now well settled that the court has before issuing a temporary injunction to satisfy itself whether (1) the plaintiff has a prima facie case, (2) the balance of inconvenience in the event of injunction not being granted lies on his side and (3) whether any substantial or irreparable loss such as cannot be easily estimated in terms of money is likely to be caused if the injunction prayed for were not granted (see -chhaganlal v. shri niwas, 1961 jab lj 1203: (air 1963 mp 208). 4. in a case like the present it has to be borne in mind that shivram could not have been unaware of the litigation which was formerly carried on between his father damodar and ganapati......dispute and a permanent injunction restraining the present applicant ganapati from executing the decree passed in his favour by the high court in the former litigation. an application by the plaintiff for issue of a temporary injunction restraining the present applicant ganapati from executing the decree passed in his favour by the high court was rejected by the trial court. on an appeal against that order being preferred the learned additional district judge gwalior set aside the order passed by the trial court and issued an injunction as prayed for. ganapati has now come up in revision before this court.3. it is now well settled that the court has before issuing a temporary injunction to satisfy itself whether (1) the plaintiff has a prima facie case, (2) the balance of inconvenience.....
Judgment:
ORDER

P.R. Sharma, J.

1. This revision application is directed against the order passed on 6-6-1961 by the Addl. District Judge Gwalior in Civil Appeal No. 19 of 1961 whereby he set aside the order dated the 27th of March, 1961 of the Civil Judge Second Class Gwalior refusing to issue an order of temporary injunction.

2. In a litigation between the present applicant Ganapati, who is the daughter's son of one Govinda Bhatt, and Damodar Bhatt, the father of Shivram, the plaintiff, in the present suit, it was held that Damodar Bhatt had gone in adoption to one Bhikhu Bhatt and that the present applicant Ganapati was entitled to possession of the house in dispute. Thereafter Shivram filed the present suit for declaration of his title to the house in dispute and a permanent injunction restraining the present applicant Ganapati from executing the decree passed in his favour by the High Court in the former litigation. An application by the plaintiff for issue of a temporary injunction restraining the present applicant Ganapati from executing the decree passed in his favour by the High Court was rejected by the trial Court. On an appeal against that order being preferred the learned Additional District Judge Gwalior set aside the order passed by the trial Court and issued an injunction as prayed for. Ganapati has now come up in revision before this Court.

3. It is now well settled that the Court has before issuing a temporary injunction to satisfy itself whether (1) the plaintiff has a prima facie case, (2) the balance of inconvenience in the event of injunction not being granted lies on his side and (3) whether any substantial or irreparable loss such as cannot be easily estimated in terms of money is likely to be caused if the injunction prayed for were not granted (See -- Chhaganlal v. Shri Niwas, 1961 Jab LJ 1203: (AIR 1963 MP 208).

4. In a case like the present it has to be borne in mind that Shivram could not have been unaware of the litigation which was formerly carried on between his father Damodar and Ganapati. Although since Shivram the plaintiff does not claim through his father he can at least prima facie be held entitled to file the present suit, it cannot be gainsaid that througout the previous litigation, of which Shivram could not but be aware, no claim was made to the house in dispute on the grounds on which the present suit is based. Where a decree has been passed by a Court of competent jurisdiction in favour of a party, principles of justice require that he should not be deprived of the fruits of his decree pending decision of an independent suit relating to the same property which could but was not filed till the former litigation was brought to its close.

5. In Laxman v. Nanuram, 1960 Jab LJ Notes 226, a somewhat similar question came up for consideration before my learned brother Nevaskar, J. The Revenue Court had in that case directed the eviction of the plaintiff under Section 78 of the Madhva Bharat Land Revenue and Tenancy Act. Thereafter the plaintiff brought a civil suit for specific performance of the contract for sale andprayed for a temporary injunction restricting the defendant from taking possession of the land till the disposal of the suit. It was held that the Revenue Court had jurisdiction to direct dispossession of a person who was in possession in contravention of the provisions of the M. B. Land Revenue and Tenancy Act. It had further jurisdiction to put the tenant in possession. It was held that as long as it was clear that the jurisdiction has been exercised by the Revenue Courts in accordance with law it would not be proper for a Civil Court to direct stay of the execution of such an order.

The ratio in Laxman's case, 1960 Jab LJ Notes 226 (supra), applies even more strongly to the present case. Here a decree was passed by the High Court in favour of the present applicant Ganapati for possession of the house in dispute being restored to him. The execution of this decree can obviously not be resisted any longer by Damodar. What rights the plaintiff in the present suit has in the property in dispute independently of his father is a matter yet to be inquired into and I express no opinion thereon. Merely by being dispossessed it cannot be said that the plaintiff would be put to such a irreparable injury as cannot be compensated by damages. That it would be difficult for the plaintiff to secure another accommodation can be no reason for depriving the present applicant of the fruits of his decree until the plaintiff in the present suit succeeds in establishing his claim.

I would, therefore, set aside the order passed by the lower appellate Court in this case.

6. The result is that this revision application is allowed and the application for temporary injunction shall stand dismissed with costs throughout.


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