Jethmal Kotadia (Jain) Vs Kanhiyalal Kotadia

The appellant/defendant has preferred the present appeal under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908, being aggrieved by the order dated 09.02.2026 passed by the learned First Additional District Judge Mungeli (C.G.) in Civil Suit No. 05-A/2024 (Kanhaiyalal v. Jethmal & Another), whereby the learned trial Court has rejected the application filed by the appellant/defendant under Order 39 Rules 1 and 2 read with Section 151 of the CPC seeking grant of temporary injunction.

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The plaintiff filed a civil suit for possession and permanent injunction in respect of a shop constructed on Nazul Sheet No. 38-D, Plot No. 237, admeasuring about 25 sq. mtr. out of total 69 sq. mtr., claiming ownership on the basis of a registered sale deed dated 05.05.1976. The plaintiff and Defendant No. 1 are real brothers, and their properties, along with that of another brother, are situated adjacent to each other and were constructed around the same time. The plaintiff had constructed a house over 44 sq. mtr. and the suit shop over 25 sq. mtr. It is stated that, on the request of Defendant No. 1, the plaintiff permitted him to use the suit shop with a condition that it would be vacated whenever required. Subsequently, when the plaintiff needed the shop for his son, Defendant No.

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1 avoided vacating the same despite repeated requests, leaving the plaintiff with no option but to institute the present suit.

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In the said suit the Defendant No. 1 filed the written statement as also the counterclaim along with an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure seeking grant of temporary injunction in respect of the suit property bearing old House No. 8 and new House Nos. 38-B/235, 236, 237 and 238, admeasuring in total 382 sq. meters, over which a double-storied building consisting of shops in the front portion and residential accommodation in the rear portion is constructed. The relief sought is to restrain the plaintiff and any other person from interfering with his peaceful possession and business activities, from forcibly dispossessing him, and from using the suit shop as a passage during pendency of the suit.

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The case of Defendant No. 1, as set out in the counterclaim, is that the suit properties were acquired out of joint family income in the names of different family members during the lifetime of their parents and even thereafter. It is contended that the portion bearing present Municipal No. 38-B/235

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(admeasuring 172 sq. meters) was purchased in the names of their parents, which upon their demise devolved upon the sons, including the plaintiff, who is residing therein. The remaining portions bearing Nos. 38-B/236, 237 and 238 were purchased in the individual names of family members, including Defendant No. 1.

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According to Defendant No. 1, a double-storied structure was constructed over the entire property, wherein the front portion comprising three shutter shops fell to his share and has been in his possession, and he has been carrying on his independent electronics business therein since the year 1980. The rear portion is in occupation of the plaintiff. It is further pleaded that a channel gate of about 4 feet width existed between the portions, through which the plaintiff was permitted to pass to access his residence due to cordial family relations and mutual understanding.

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The Defendant No. 1 alleges that disputes subsequently arose between the parties regarding their respective shares and enjoyment of the property. Thereafter, he withdrew the permissive use and restrained the plaintiff from entering his portion. However, the plaintiff and his family members

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allegedly attempted to forcibly enter the premises and interfere with his possession and business. Specific incidents dated 24.08.2023 and 01.06.2024 have been cited, wherein the plaintiff and his relatives allegedly trespassed into the shop, attempted to damage goods, and extended threats of dispossession, leading to lodging of complaints before the police authorities. It is contended that the plaintiff has no legal right to use the shop premises as a passage and that the acts complained of create a serious apprehension of forcible dispossession. On these averments, Defendant No. 1 asserts existence of a prima facie case, balance of convenience in his favour, and likelihood of irreparable injury, warranting grant of temporary injunction.

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Per contra, the plaintiff filed a reply opposing the application, denying the assertions of Defendant No. 1 in the application under Order 39 Rule 1 & 2 read with Section 151 of the CPC. It is contended that the suit shop is his self-acquired property, purchased through registered sale deeds from his own income. It is further pleaded that the adjoining shops were independently purchased by the parties and are not joint family properties. According to the plaintiff, although separate

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portions were purchased, due to close family relations, no partition wall was constructed between the shops and Defendant No. 1 was permitted to use the combined space for business purposes with consent of the plaintiff and his brother.

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The plaintiff further asserts that the only access to his residential house is through the suit shop and the channel gate, which has been continuously used by him and his family members for the past 25 years as a matter of right. It is alleged that Defendant No. 1, with mala fide intention to obstruct such access and to defeat the plaintiff’s rights, has filed the present application for injunction.

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After appreciating the evidence available on record, the learned trial Court by order impugned dated 09.02.2026 dismissed the application under Order 39 Rules 1 & 2 of CPC holding that Defendant No. 1 failed to establish a prima facie case, particularly due to lack of proper identification of the suit property in his counterclaim, and further found that the balance of convenience lies in favour of the plaintiff, as restraining his access would cause greater hardship, while no irreparable injury would be caused to Defendant No. 1;

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accordingly, the application for temporary injunction under

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Order 39 Rules 1 and 2 CPC was rejected.

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Learned counsel for the appellant submits that the impugned

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order is vitiated by material irregularity, illegality and perversity, as the Trial Court failed to exercise its jurisdiction in a proper and lawful manner while rejecting the application for temporary injunction. It is contended that the trial court misread the facts and misapplied the settled principles governing grant of injunction, ignoring that the appellant has a prima facie case, and that the balance of convenience and irreparable loss lie in his favour. It is further argued that the plaintiff has an alternative access through a lane and cannot claim a right of passage through the appellant’s shop, and continuous interference by the plaintiff and his family members is causing serious obstruction in the appellant’s business, leading to financial and irreparable loss. The trial Court also failed to consider the complaints made by the appellant before the police authorities regarding such interference. Hence, it is prayed that the impugned order be set aside and appropriate interim protection be granted in favour of the appellant.

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This Court has heard learned counsel for the appellant and carefully perused the record of the case. On due consideration, it is apparent that the Trial Court has properly appreciated the pleadings and documents while deciding the application under Order 39 Rules 1 and 2 CPC. The Trial Court has rightly held that Defendant No. 1 failed to establish a prima facie case, particularly in view of the absence of clear and specific description of the suit property in the counterclaim, which creates uncertainty regarding the exact property for which injunction has been sought. In contrast, the plaintiff has produced a registered sale deed, which prima facie supports his claim over the suit property.

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It is also borne out from the record that the plaintiff has been using the passage through the suit shop to access his residential portion situated at the rear side for a considerable period of 25 years, and this aspect is not effectively disputed at this stage. In such circumstances, the finding of the Trial Court that the balance of convenience lies in favour of the plaintiff is well-founded, as any restraint on such access would cause greater hardship and inconvenience to him.

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So far as irreparable injury is concerned, the Trial Court has rightly observed that refusal of temporary injunction would not result in such loss to the appellant which cannot be compensated, whereas obstruction of the plaintiff’s access to his residence would result in serious prejudice. The findings recorded by the Trial Court are based on sound judicial principles governing grant of temporary injunction and do not suffer from any illegality, perversity or material irregularity.

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In a Miscellaneous Appeal, interference is warranted only when the discretion exercised by the Trial Court is arbitrary, capricious or contrary to settled principles of law. In the present case, no such infirmity is made out. The appellant has failed to demonstrate any error in the exercise of discretion by the Trial Court.

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In view of the above, no illegality or perversity is found in the impugned order dated 09.02.2026 passed by the learned Trial Court. The order of the learned Trial Court is hereby affirmed.

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