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Ramesh Kedia, son of Shri Vishwanath Kedia, resident of bevendrajslagar, Raipur. PETITION UNDER ARTICLE 227 OF THE CONSTITUTIQN OF INblA -I tf HIGH fXWKtOV CHHATnSOARH. BILA8PUR SIMGI^Bl^CTLs HON'BLE 8HRI MAmNDRA MOHAN 8HRIVJWTAVA.J. W»itPetltlon (2271 No. 3041/2608 PETITIONERS/ Defeudaats RESpONDEN're/ Plaiatitfe Bhe^chaad Ahuja & anofher VersuB Siut. Shaluda Vaaak and others Petitlon u/A 227 ofthe Constltutioa oflndia ORDBR POST ON /^'JUNE. 2010 SdJ- IManindra Mohan Shrivastava Judge i HI08CXWRTW CHHATTBBtiAiUl sBVJVSPVSi 8IMQLB BBNCH : HOM'BLB8HIU MARINDRAIIBOHAN SHRIVASTAVA.J. PET1TIONBRS/ Defeadaafcs RE8PONDENT8/ PIaiatUfa WritPetttlou(22nHo. 3041/2008 Bhagcband Ahuja & anoflaer Venw Snit. ShflhidaVaaak aad othera PeUUon u/A 227 of the CotiatttaUea of ladla Appearaace: Shri B.P; SUarma, counsel for the petitianeis. Shri Prashaat Jay^swal, Sr. Advocate wifh Shri Neeraj Pradhaa, couasel for respondent No. 1. Shri R.K. Kesharwaai, coimsel for respondcnt No.8. ORDBR (Passed on j5- 06.2010) 1. This petltion zmdcr Artkile 227 ofthe Constitutkta of Iiidia has beea filed by fhe petitioners/defendants aggrievcd by order dated 17.4.2008 ^Aiuicxurc P-10) passed by leamed Coiut below ia dnl Suit No.399 A/2006, whcreby application ofrespondcnt No.l/plntntiff uader OBdcr 1 Rule 10 read with Section 151 offhe C.P.C has beea aUowed aad learaed Courtbelow has graated injunctionialavouroffhe plaintiff. 2. Case 6f fhe petiftoners, who have been directed to be inq»leaded as defendants by impugaed ordcr, is fhat fhcy are bonafide pmch^er of the dteputed properly bearmg Khasra No, 78/02 (Part), Plpt No.25, area 4000 sq. ft. situated at KliainanUh, Banjari Baba Nagar, Ward No.24, Raipur. Pctilioners piuch^sed fhe aforesaid propcrty fi»inone Raiaesh 4^'ass^, *!^ °>'""% ^^y -2- /l^\ '<-^"^^^i''"/" Kumar Kedia vide sale deed dated 16.8.2007 (Annexnre A-l) for & consideratiou of Rs.24,16,000/-. It is the case of the petitioners that before purchase, petitioners, as v^Uaat pi.ucbasers, made enqiuries in. which fhey came to know fbat name of Ramesh Kedia was duly recorded in fhc land records as evidenced bv document- B-l aad Kishfbandi Khatoni entries (Aimexure P-2). The property ia dispute was purchased by Ramesh Kedia fiom origiaal owner Siat Harjeet Rajpal vids registered sale deed dated 22.7.2003 (Annexure P-3). Petitioners also obtained iavestigation report after search of rccords of the of&ce of Sub-Registear, Raipur showing no encuxabrauces, copy of whicti }ias beea placed on record as Annexiire P-4. Afier purcbase, petitiQner inade appUcation to the Mmucipal Corporation for graat of buildiug permission wbich was also granted. A certificate fiom the office of CoUector (Nazul), Raipur was ^sued to the effect fhat fhe land is not fhe Goveminent or Nazul laad. 3. After fhe petitioner started raising construction, suuunons issued Iroin fhe trial Court iu a suit filed by respondents/plairttiffs were received. Respondent/plamtiff filed an application uader Order 1 Rute 10 read with Section 151 C.P.C. (Amiexure P-7) for impleadiag the partics iacludtag the petitioners, Reply (Anaexure P-8) was fited by the petitioners. Respondent No.2/PlaintifF also filed aa application under Section 94 read wifh Section 151 of fhe CPC for graat of mjunctiDn. I'etitibncrs submitted their reply vide Amiexure P-9. Vide impugned order dated 17.4.2008 (Aniiexiire P-10), leamed Court below not only aUowed the application xmder Order 1 Rule 10 read with Section 151 of C.P.C. directmg nnpleadment of Raiaesh Kedia and ffae petttioaera as parties to the suit, but also aUowed plam.tifl's application for grant of -3- tT^ ^iy injunction aad restraiaed fhe petitioners fioia raisir^ construction and aUenatm.g the suit property. 4. Submission of leamed counsel for fhe petitioners is that fhe leamed Court below has exceeded its jiuisdiction ia afflowing application under Order 1 Rule 10 CPC read with Section 151 ofthe CPC as also grantmg injunction in favour of respondent/plamtiff. Leamed coiiusel for fhe petitioners subinits fhat while aUowing appMcation UBder Order l Rule 10 read with Section 151 of fhe CPC, vide iinpugned order dated 17.4.2008, learued Court below has mechanically aUawed injunction appUcation wifhout considering various objections wifh regard to fhe veiy niauitamabilily of fhe suit aud coinpletely ^aoring well scttled principtes ia the matter of graiit of iajunctioa. In the submisaion of leamed counsel for the petitioners, it is nowhere reflected Ironi flie impugned order fhat fhe learaed Court below before graating injunction, recorded any flnduig with regard to prima fctde case, balance of convenience and irreparable injuiy. Referrmg to the grounds inade in the writ petition and reply to iujunction appUcation, it is subniitted fhat the plamtifE' is not in possession of the laad m dispute, whereas the petitioners/defendants purchased fhe property by a valid and registered sale deed. The merits of the case of fhe plalutiffs were exatniaed by fhe Cooperative Courts at dffierent levels and bofh -Depuly Registrar as weU as Joint Registrar dismissed fhe case. The Tnbuiial held fhat ttie dispute was not matntainable before Cooperative Courts, whereafter fhe prescnt suit was filed. Petitioners haviag purchased the property ia dispute for valuable consideration got fheir name rccorded in the revenue records aad luade huge investment after obtainiag vaUd permlssion for construction fi?oin fhe Mimicipal Corporation and therefore balaace of -4- ''- ^ convenience is in fheir favour. It was also argued that when the reply to appUcation iinder Section 94 read with Section 151 CPC was filed, tfll fhat ti.me, petitioncrs were not impleaded as parties, as application under Order 1 Rule 10 read with Section 151 ofthe CP.C. was pending. Learued counsel for the pctitioners further submitted tbat the leamed Court below has coiiurutted gross iUegatily in passing the order ofiujunction wifhout impleadment ofthe petitioners as pardes. It is- also submitted ttiat the suit suffers fi-om several inherent defccts and was not at all maiatainable. It has been ai^ued that the order passed by the Tribunal retuming the dispute and filing of such 'dispute' m tbe form of 'plaint' before ftie learaed Court below is luiknown to ]aw as the 'dispute' retumed cannot be said to be 'plainf and fberefore the pttwisions of Order 7 Rule 10 ofCPC are not attracted. Further submissloa afleacned counsel for the petitioners is that the siiit is barred by Umitation. It is also contended that fhough the dispute was directed to be retumed by the Tribunal vide its order dated 10.1.2001 (Anniexure P-ll), presCTitsuit was filed after almost 2 years aud 9 laonths aad thetefore plairitiffwas not entifted to aay iujunction. It has also been submitted tbat the suit has been filed agaiust dead person. PlaintifFs were fully aware fhat during fhe pendency ofthe case before fhe Cooperatfve Courts, erstwhile purchaser Mobjnder Siagh died and their legal represeatatives wcre on record before the Tribuaal, yet while fiting suit, dead pcison was iiapleaded, fherefore, the suit was aot mamtainable as his legal representatives were not impleaded as defendant. It is also submitted fhat the learaed Court below has granted iajuaction without conjsidermg the balaace of convemence as the petitioners beiug bonafale purchaser made huge iavestment and they being in possession, grant of injuaction ia favour ofrespondents/plaiatiffhas resulted ia miscarriBge ofjustice. /--.'-"'"-T^; .<.?-"" ^^...""•:^''. ff s^'""%"'^: r 'hj i '^1^'h ^ y -5- .^n / ^ Though in the petitton, the petitioners have also assailed the impugned ordcr dated 17.4.2008 in so far as application under Oeder 1 Rule 10 read with Section 151 ofthe CPC has been aUowed, during the course of argument, learaed counsel for the petitioners did not dispute the correctness and vatidity of th.e said part of tbe order in so far as impleadment is concemed. 5, Per contra, submission of leamed counsel for respondcnt No. 1 is fhat fhis petition itself is not inamtainable iuasmuch fhough tifle of fhe petition shows that it is a pctition under Ai'ticte 227 of fhe Constitution oflndia, petitioners Iiave prayed for writ ia fhe nature ofmandamus, as also for writ/order for disinissal of the civil suit by declarmg the proceedmgs as abuse ofthe process oflaw. Petitioners have also prayed for a writ ia the nature ofcertiorari for qu^hing order dated 17.4.2008 and for disutfasal of plamtiffs appUcation under Order 1 Rule 10 read wifh Section 151 ofthe CPC and appUcation under Section 94 read with Scction 151 CPC. It has been further submitted that the plaintiffwas fhe original purchaser of fhe plot fix>in fhe Housing Society and the Housing Society UlegaUy sold the said plot fhough fhere was no provision for automatic canceUation of the aUotment of land ia favour of fhe plaintiff. Thougb fhe Society sought permission for cancellation of aUotment, the Dy. Registrar, Cooperative Society, Raipiu- vide order dated 28.1.1988 (Anaexure R-1/2) did not graat pennission for canceUation. It is also submitted that fhough the Depuly Rcgistrar aad Jomt Registrar dismissed fhe dispute on merits, the Cooperative Tribuaal held fhat fhe dispute was not mamtamable and orders of fhe Dy. Registrar and Joiat Registrar were set aside and the dispute was returaed to the plaintlff, whereafter a suit was filed. It is subinitted that the plaintiff beiag fhe !'.' 4 '^ % s % 1 -6- <<LI7 ^ <^/ or^inal purch^ier had the title over the land in dispute aad subscquent sale deed ia favoiu" of Mohinder Singh was not legal & biading aad fherc was no teaasfer of the tifle iu favour of Mobinder Siagh or subsequent purchaser iacluding fhe petitionera/defendaat. It is argued that fhe learued Court below has passed the impugned order preserviag the propcrty aad tbere is no jurisdictionat illegalily, pcrversily nor present one is a case of miscamage iajustice so as to warrant interference by this Court. It is further subinitted fhat ttie leamed Court below has passed order ofinjunction ia exercise ofpowei's under Sectmn 94 (e) read with Section 151 ofthe CPC aad fherefore the provision of Order XXXIX Rule 1 & 2 are not attracted aad it waa not necessaiy for the Court below to record any findiug wifh re^ird to prima fade case, balaace ofconvenieace aad irreparable injiuies. 6, I have heard leamed coimsel for the parties aad peruscd the records. 7. None appeared for respondent No.2 flioiigh served. Respondent No. 3 to 7 were pcmuttcd to be served fhrough substituted service by the order of this Court, whereypoa notice was pubUshed iu the newspaper -Dainik Bhaskardated 22.3.2010, copy offhe same has also be placed on record. However, no appearance has been made for and on behalfofsespondents No. 3 to 7. 8. From perusal ofthe impugned order dated 17.4.2008 (Annexare P-10), it is reflected that while aUowiag plamtiffs application zuader Order 1 Rule 10 read with Section 151 CPC, leamed Court below has aUowed plaintiS's appUcatk>n under Section 94 read with Section 151 of the CPC recording that fhe petitioners/defendauts are proceediag to raisc constructions as is seen fix>m ffcie photographs. Leamed Court below has -7- f^}^A recorded the fiadiag fhat tiU fhe dispute wifh 1'egatd to title is decided, it is not proper to raise any construction. Leamed Court below has passed an order of iajunction by quoting pioviston contained in Section 94 (e) of theCPC. 9. From the order impugned, it is clear that before graatiag mjiinction in favour ofthe plamtiffand ^ainst petitioners/defendants retrainmg them 6x>v0i raisiug construction, leamed Court below has not ghren proper consideration aad fhe order of injunction is more or tess mechanical ia nature. Provisions oontamed m Scction 94 (e) of fhe CPC provide fhat in order to prevent the ends ofjusti.cc froni beiag defeated, fhe Court may, if it is so prescribed, make such ofher interlocutoiy orders as may appear to the Court to be just and conveiuent Blaborate provisions in the matter of grant of teniporaiy injiuictton are containcd in Order XXXK of fhe CPC. It is too weU setded principle laid down in catena of decisions fhat while grauting iajunction, fhe Court is required to consider prima fade, balance of conveniencc aad irreparable mjuries. Learued Court below, it appears, while allowing appUcatiou for impleadiaent of pardes, proceeded to pass au order of teinporaiy injunction as weU, that too without due and proper consideration of fhe plauittffs' case aad without recordiag aay findmg regardiug prima facie case, balaace of convenience aad irreparable iajury. Learaed Court below having allowed plamtiff appUcatiou under Order 1 Rule 10 CPC ought to have cousidered fhe prayer for iajunction ou the well settled prmciples relatiug to grant of injunction taking uito consideratiou the provision contamed ia Section 94 (e) and Order XXXIX of fhe CPC. In so far as grant ofinjunction is conceraed, the impugned order is clearly in excess of jurisdiction beiug tnechaaical and wifhout consideration of -8- -^7 '-^ssay' prima fade case, balance of couvenience aad n-reparable iajuiy. Submission of leamed counsel for fhe respondents fhat while graatnig injunction under Section 94 (e) read wifh Scctlon 151 CPC, the Court below was not obUged to consider pruna fade case, balaace of convenience aad UTeparable iajuiy, caanot be accepted. Froai fhe iiapugned order, it is revealed that fhe only operative reason for graat of injunction is fhat coastruction is being xaade. This reason, in the opinion of this Court, by itself could not be inade a basis to graat temporaiy uyunction wifhout considering aU other related and relevant aspecte of the case. Learned Court below has not appUed its miad to aay of the submtesions made by fhe petitioners/defendaats before grautirtg temporary iajunction m favour of respondents/plaintiff. The othcr objection ofleamed counsel for respondent No. 1 ttiat fhou^i the petition is under Article 227 ofthe Constitution of India.but prayer for issuance ofwrit under Article 226 ofthe Constitution oflndia bas been made, and fherefore, petition is not mauitamable, also deserves to be rejected. Wifhout much deUberation, siiffice to say that petitions both under Article 226 as weU as under Article 227 of the Constitution of ludia is maintamable imder the law, 10. In so far as unpleadment of the petitioners aad erstwhile piirchaser 1s conceraed, a pcrusal of impugned order shows that fhe leamed Court below takmg iato consideratiou fhe nature of dlsputc raised by fhe plaiutiffbefore fhe Court below aad that the petitioners were subsequent purchaser of the disputed property aUowed the appUcation. Petitioiiers' own case is ffaat fhey are ia possession of fhe property in dispute which was purehased by them from eretivlule purchaser of the subsequent • allotee, whose aUotm.ent is tinder chaUenge in the suit. In fhis view ofthe ^""17s5ftfl ''t,1 .;'.^^^ -9- •/1 /' "7. inatter this Court is of the opinion that fhe order of ffae teamed Court bekiw allowing plaintifTs appUcatiDn ixader Order 1 Rule 10 read with Section 151 of the CPC does not suffer fix>m aay jurisdictional illegaUly or perversity so as to caU for any iaterference. 11. In vicw of the aforesaid discussion, fhis pctition partly aUowed and impugned order dated 17.4.2008 (Antaexure B-10) in so far as injunction in favour offhe plaintifF/respondent No.2 has been granted, is set aside. As the order ofgrant ofinjunction tsas been set aside on flie ^ound fhat the order of leamed Court below is perserse and wifhout recoxdin^ any finding on prima fafde case, balaace of convetiience and u-repaiablc injuiy, it would be open for the Court below to duly comsider the inatter in accordaace wifh law. 12. No order as to costs. Sd/- ? iManindra Mohan Shrivastava^ Frav'ien