IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A. O. No. 60 of 2008 Satya Prakash Kaushal …Defendant/Appellant Versus Smt. Savita Kaushal …Plaintiff/respondent Shri T.S. Bindra, Advocate present for the plaintiff. Shri D. Barthwal, Advocate present for the respondent. Dated: December 21, 2009 Coram: Hon’ble Prafulla C. Pant, J. Hon’ble V.K. Bist, J. Prafulla C. Pant, J. (Oral) 1. This appeal preferred under Section 19 of the Family Courts Act, 1984, read with Order XLIII, Rule (1) (r) of Code of Civil Procedure, 1908, is directed against the order dated 06.02.2008 passed by the trial court (Principal Judge Family Court, Dehradun) in Suit No. 419 of 2007 whereby the application for temporary injunction (6-C) has been allowed directing the appellant not to interfere with the working of the plaintiff-respondent in running the wedding point. 2. Heard learned counsel for the parties. 3. Brief facts of the case are that the defendant- appellant got married to the plaintiff-respondent on 24.10.1993. Two sons, namely, Saurabh and Gaurav born out of the wedlock in the year 1995 and 1996 respectively. It appears that after the matrimonial dispute between the parties, the two said minor sons live with the mother (plaintiff-respondent), separately from their father (defendant-appellant). The plaintiff’s case before the trial court is that she is the owner of a wedding point and the 2 wedding point is being run with the name and Style ‘Sathi’. It is pleaded by her that she has a licence to run the wedding point from the Zila Panchayat. She had employed employees for running it. It is also pleaded that the defendant appellant threatened the respondent that he will set on fire the wedding point if she did not leave the said property. 4. The defendant-appellant contested the application filed before the trial court pleading that the plaintiff has concealed the fact that she has filed suit no. 408 of 2007 another Court. It is also pleaded by the plaintiff- respondent before the trial court that the Principal Judge Family Court (trial court) has no jurisdiction. It is also pleaded that in the suit no. 408 of 2007, the plaintiff has pleaded that the property in question is property of Hindu undivided family and the defendant-appellant is ‘Karta’ of said property. The defendant-appellant has further pleaded before the trial court that it was he who got constructed the wedding point by selling his own land and it is wrong to say that it was his wife (plaintiff-respondent) who is running the wedding point. 5. The trial court after hearing the parties passed the impugned order holding that there is prima facie case in favour of the plaintiff. Hence this appeal. 6. Learned counsel for the appellant argued that Principal Judge Family Court had no jurisdiction to entertain the suit no. 419 of 2009 in which the injunction has been prayed in respect of the wedding point in question. Prima facie we are unable to agree with the argument advanced on behalf of the appellant for the reason that clause (c) and clause (d) of sub section (1) of Section 7 of Family Courts Act, 1984 empowers family court to entertain the suit. 3 7. Another contention of learned counsel for the appellant is that the plaintiff has concealed the fact that she has instituted suit no. 408 of 2007. Copy of the plaint of said suit shows that said suit has been instituted before the Civil Judge (Sr. Division), Dehradun for partition of the property, which includes plot no. 952 measuring area 0.2410 hectares on which the wedding point is constructed. The trial court has discussed that out of total area of 0.4726 hectares of plot no. 952, the defendant-appellant has transferred land to his sons, who have instituted the suit (Suit No. 408 of 2007) for partition of other properties and land measuring 0.2146 of plot no. 925. 8. While granting or refusing the temporary injunction, the Court has to see whether: - (i) there is prima facie case in favour of the plaintiff, (ii) there is balance of convenience in his favour, and; (iii) whether irreparable loss would be caused in refusing the injunction. 9. The trial court has considered all the three points. Had it been a suit filed by third party for temporary injunction it could not have been said that it is not just and proper on the part of the trial court to grant temporary injunction against the real owner of the property. But in the present case the parties are husband and wife and their minor sons are living with the mother (plaintiff). In such circumstances if a wedding point is constructed by one of them and another is running the wedding point to maintain the children, there is nothing wrong on the part of the trial court in granting the temporary injunction provided it is shown to the Court that it is the party seeking temporary 4 injunction who is actually running the wedding point. The trial court has discussed the facts that not only the licence to run wedding point in the name of the plaintiff but also that she is making payment of the electricity dues and she had employed the employees to run the wedding point. Since all the three ingredients mentioned above are found in favour of the wife, this Court is of the view that the trial court has committed no illegality in granting temporary injunction, so far it relates to running of the wedding point on the condition that she will maintain the accounts of the earning from the property. However, we are of the view that since in respect of all other properties there is already suit no. 408 of 2007 pending between the parties for partition, the temporary injunction should be confined only to the wedding point in respect of which the plaintiff could show prima facie case in her favour not in respect of the other properties for which she alongwith her sons filed separate suit. 10. Therefore, this appeal is disposed of with the modification that the temporary injunction granted by the trial court vide order dated 06.02.2008 would operate in respect of the wedding point which is said to have been run by the plaintiff and not the other properties. With this modification, the appeal is disposed of. (V.K. Bist, J.) (Prafulla C. Pant, J.) 21.12.2009 VKG