Remanded

Surendra Kumar v. Jabrudeen and Ors.

Rajasthan HC15 Feb 2013CMA/4316/2011

Case brief

AI extract

What is this about?

This appeal challenged an order granting an injunction against alienation of suit property passed without considering submissions on prima facie case, balance of convenience, and irreparable injury. The High Court set aside the order, emphasizing the necessity of elaborate discussion on these issues under CPC Order XXXIX Rules 1 and 2.

What did the court decide?

Impugned order dated 16.09.2011 set aside and matter remanded to trial court for reconsideration after hearing parties.

Surendra Kumar Vs Jabrudeen and Ors. — Property and Title | Rajasthan HC (2013)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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: J U D G M E N T :

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S.B. CIVIL MISC. APPEAL NO.4316/2011

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(Surendra Kumar Vs. Jabrudeen & Ors.)

Date of Judgment

15^th February, 2013

PRESENT

HON'BLE MR. JUSTICE ARUN BHANSALI

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Mr. S.G. OJha, for the appellant. Mr. N.L. Joshi, for respondent No.3.

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BY THE COURT:

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This appeal has been preferred aggrieved by the order dated 16.09.2011 passed by the trial court, whereby, the application filed by the appellant was partly accepted and the respondents were restrained from alienating the suit property.

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It is submitted by learned counsel for the appellant that the order impugned passed by the trial court does not take into consideration the several arguments raised by the appellant and in fact the prayer was for maintaining the status quo as well, however, the same has not at all been considered and the order impugned has been passed in a very cursory manner.

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On the other hand, learned counsel for the respondent No.3 supported the order impugned. It was argued that the plaintiff-appellant has no prima facie case and even the impugned order was essentially passed only with a view to see that further complications do not arise, however, as the respondent is a bona fide purchaser, he is entitled to use the said land.

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I have considered the rival submissions made at the Bar and perused the order impugned.

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The order impugned proceeds on the assumption that the appellant-plaintiff was merely seeking an injunction against alienation of the property and thereafter the order flows in the said direction without any discussion and ultimately an order granting injunction against transfer has been passed. Alongwith the appeal, the counsel has filed an affidavit of the counsel, who represented the appellant before the trial court, inter alia, stating that he had not given any concession and had argued the matter on all aspects including prayer for seeking status quo. The said affidavit cannot be taken into consideration for the purpose of decision of this appeal. As held by the Hon'ble Supreme Court in the case of State of Maharashtra Vs. Ramdas Shrinivas Nayak & Anr. reported at AIR 1982 SC 1249 no amount of evidence or affidavit can be looked into for the purpose of disputing as to what transpired before the Court and only remedy is to go before the same Court and raise the issue in this regard.

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However, looking to the facts and circumstances of the case, wherein the appellant has filed a suit for declaration, partition and permanent injunction and apparently the Court has not dealt with the arguments raised by the parties and neither the arguments raised by the plaintiff nor the defence raised by the respondent has at all been taken into consideration and when it is trite that a Court while considering application under Order XXXIX, Rule 1 and 2 CPC should elaborately deal and discuss the submissions made by the parties on all the three

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relevant issues i.e. prima facie case, balance of convenience and irreparable injury, which the court below has failed to do, the order impugned cannot be sustained.

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In that view of the matter, the order impugned dated 16.09.2011 is set aside. The matter is remanded back to the trial court for considering the Misc. Application No.18/2010 again after hearing the parties. The parties may appear before the trial court in this regard on 26.02.2013.

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The appeal is disposed of accordingly. No costs.

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(ARUN BHANSALI), J.

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A.K.Chouhan/- 64

Surendra Kumar v. Jabrudeen and Ors.

Case brief

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Surendra Kumar v. Jabrudeen and Ors.

Case brief

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