m THE HIGH COURT OF JUDICATURE AT BILASPUR ' HHATTISGARH WR1T PETxTXON No. 3 €63: OF 2006 PETITIONER : / Sudershan Patel S/o ‘L H Shn‘ Panch ram Patel, w DEFENDANT NO.1 Aged about 36 yCars, resident of Village Janghora, Thana Pithora, District Mahasamund (CG). VERSUS ESPONDENTS: /1 Meghmoti W/p Panchram , aged about 39 J g / I PLAINTIFFS 1 AND 2 yeals. Tamn Kumar S/o Panchfam Patel, aged about l l years, (minor) through the natural guardian, mother Smt. Meghmoti Patel W/ o Panchram Patel, aged about 39 years. Both resident of Ward No. 13 Pithora, Thana Pithora, District Mahasamund (CG). The Sta’te of Chhattisgarh, through the Collector Mahasamund, Tahsil and District Mahasamund (CG). i ( Defendant no.2) PETITION UNDER ARTICLE 2§7 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT OR WRITS, ORDER OR ORDERS; DIRECTION OR DIRECTIONS UNDER THE FACTS ADQ CIRCUMSTANCES OF THE CASE /3. XI-HC-ZZ injuncfion infer-a/ia pleading ‘l'haf land and are in possession. Pei-i Respondenfs No. 1 5x 2 also filed of fhe C.P.C. for grantof 'l'emporary' iru'unc‘rion. Pe‘l’ifioner refuled ‘rhe claim ned himself fo be in possession of 1he sui'l' 27/07/2006 Sm‘l'. Renu Kochar', counsel None for respondents No.1 Shri Arun Sac, Govt Advo: are for respondent No. 3/5‘ra‘re. Heard on admission. Respondents No. 1 6: Zlplain‘riffs insti‘ruled a suif ogoins‘r ‘rhe pefi‘l'ioner' and responden‘l' No. El for declarafion of ‘l‘iHe and permanen‘l ‘l'hey are fhe recorded owners of fhe sui‘l' fioner is 'H'lreal'ening To dispossess 'Hwern. an applica‘l'ion under order 39 Rule 1 and 2 ‘or l'he pe'l-i‘l'ioner'. &2. of responden‘l‘s No. 1 & 2 and clai land. Learned 3rd Civil Judg , glass-1, Mahasamund offer affording oppor‘l-unify of hearing fo bofh the par'l'ies held fhai' fhe suif land is in possession of respondenfs No. 1 ‘ ease, irreparable loss .ond bol nce of convenience lie in 1'heir favour, . accordingly allowed fhe applica‘l'i n and passed ‘l'emporary injuncfion against . The pefi'l'ioner. 'Pefifioner ins'l'ead of ch llenging fhe order before ‘l'he appellafe Cour‘l', has filed an applicafion 2 fherefore, fhe principle of prima facie der order39 Rule 4 of 1'he C.P.C. forre- calling fhe femporary injunction n fhe ground that respondents No. 1 & 2, suppressing fhe ma‘l‘erial facf 1' af pefifioner offer loosing civil suif in ‘rhe Couri'vof 2'” Addifional Disfric Judge, Mahasamund has filed an appeal m XI-HC-22 87 Mahasamund vide impugned o der dafed 31.01.2006 susfained fhe order passed by Trial Courf and di missed The appeal. Feeling aggrieved, fhis peti‘i'ion has been filed. Learned counsel for ‘lh pe‘lifioner confended l'ha'l' The pefi'l'ioner is in possession of 1'he sui1' land, b l learned Trial courf did not apprecia'l'e fhe material properly and has pass d injunction order that may cause irreparable injury to him and even learne trial court did not consider the fact that so far as title and possession of uit land are concerned, the dispute raised by petitioner is still pending in fir tappeal. before Hon'ble the High Court. Order 39 Rule 4 of the PC reads as below: "Order for injunction may be discharged, varied or set aside:- Any order fo an injunction may be discharged, or varied, or set- aside y ”the Court, on application made thereto by any party issatisfied with such order: [Provided that if an application for temporary injunction or in any davit supporting such application a party has knowingly e a false or misleading statement in relation to a mater al particular and the injunction was granted without givin notice to the opposite party, the Court shall vacate th injunction unless, for reasons to be recorded, it consider that it is not necessary so to do in the interests of just Provided further that where an order for injunction (9% W) i d i . m WI W W W WW mamatw ‘ WW§WW WW -Q K éswm before the High Cour-*r and 1‘ a1' is pending, have obfained ‘rhe irQuncfion order. L The application was ismissed by the 3” Civil Judge Class-I, Mahasamund vide order daf 18.08.2005. The order ww assailed in Miscellaneous Civil Appeal. Learned 2"“ Addilional Dis‘rricf Judge, XI—HC-22 mm WW WW§WW éamw has been passed affer 9" sef aside on *he applic such discharge, varia'ri necessi‘iafed by a chan fhe Cour-1' is satisfied f a? fhe order has caused undue hardship 1-0 fhaf party." ving ‘l'a a parfy an opportunify of being heard, fhe order- hali no? be discharged, varied or ion of tha‘f parfy excep‘r where an or- serting aside has been in The circumsfances, or unless Trial Court has only Jur sdiclion +0 enfer'l‘ain lhe application and discharge, vary or sef-aside o er of injunction if The order has been obfained by suppressing ma‘reri l fac‘ls in absence of opposife pariy or where‘change of circumstances sfrained lo do so or the Cour‘l' is sa‘l‘isfied lhai' fhe order has caused. und' hardship +0 the party. None of these conditions is present in the ins ant case, therefore, the Court below by rejecting the application and on appeal the appellate Court sustaining the order did not commit legal or juri 'dictional error. If the petitioner was disc ntented with the 'order passed by 3” Civil Judge, Clws-I, Mahasamund allo ing application under Order 39 Rule 1 at 2 of the C.P.C., granting temporwy injunction in favour of respondents No. 1 & 2 , he should have challenged th same by preferring an appeal and should have raised those questions wh he is raising now, as these questions are the questions which can be exam ned by the appellate court in its appellate jurisdiction and are not the qu stions wh‘gchrLme‘giihin the edifice of Order 39 Rule 4 of the C.P.C. \ ..- ass) g n i XI~HC-22 Kvr Consequently, M.(W).P. No. 26 disposed of. Sd/- Vijay Kumar Shrivastava Judge ‘ ( 5 % W ) 48/06, I.A. No. 6767/06 and 6768/06 sfand W {Ti 200 ,g g“ W W WW mmw mim‘hr WHEY § 1‘s‘2‘1m WW .. q r %WW Wifh +he aforesaid observations, fhe insmm' pefifion is disposed of.