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Judgment
The amended cause title filed by the appellant in view of the
fact that the respondent No.6-Bank has merged in State Bank of
India, is taken on record, the same be placed at appropriate place
by the office.
This appeal is directed against the order dated 20.04.2016
passed by the Add. District Judge, Pali (''the trial court''), whereby
the trial court has granted injunction against the appellant from
alienating the suit property, however, the application has been
rejected against the respondents No.2 to 6.
The suit was filed by the respondent No.1-plaintiff
seeking cancellation of sale deed and adoption deed said to have
been executed by her in favour of the appellant with the
averments that the sale deed was executed without any
consideration, the adoption deeds were got executed deceitfully.
The appellant remained ex-parte in the suit as well as T.I.
application.
A reply to the application was filed by the respondent No.6-
Bank, inter alia, alleging that the parties i.e. the appellant and the
plaintiff were hand in glove, the property was mortgaged by the
appellant in the Bank and a huge amount was outstanding and,
therefore, the application be rejected.
The trial court after hearing the plaintiff as well as counsel
appearing for the Bank and Govt. Counsel, came to the conclusion
that there was no prima facie case in favour of the plaintiff,
however, it was then observed that as the appellant herein did not
appear and the matter was ex-parte against him, he must be
restrained from transferring the suit property. The issues
pertaining to balance of convenience and irreparable injuries were
also decided in one line.
Further while passing the operative portion, it was directed
that the appellant will not transfer the suit property, the application was rejected qua the respondents No.2 to 6 and a right
was given to the plaintiff to settle the dues of the Bank and it was
also directed that on payment made by the plaintiff, an implied
contract between the plaintiff and the appellant regarding refund
of amount by the appellant would be deemed.
Learned counsel for the appellant submitted that besides the
fact that the order was wrongly passed ex-parte against the
appellant, even on merits, the impugned order of injunction could
have been passed as once the trial court came to the conclusion
that there was no prima facie case in favour of the plaintiff, the
application should have been rejected and, therefore the order
impugned deserves to be quashed and set aside.
Learned counsel for the plaintiff duly supported the order
impugned. It was submitted that once a dispute between the
parties, which is in the nature of a family dispute exists, the
passing of order for maintaining status quo is innocuous and,
therefore the same does not call for any interference.
Reliance was placed on judgment of Hon''ble Supreme Court
in the case of Akriti Land Con. Pvt. Ltd. v. Krishna Bhargava &
Ors .: 2017 DNJ (SC) 290.
Learned counsel for the Bank submitted that pursuant to the
order passed by the trial court, no amount has been deposited by
the plaintiff.
I have heard learned counsel for the parties and have
perused the material placed on record.
The trial court based on the reply filed by the Bank and the
submissions made on behalf of the plaintiff came to the conclusion
that there was no prima facie case in favour of the plaintiff, after
reaching the said conclusion, in a strange fashion, it was observed
that as the appellant was ex-parte, order can be passed against
him for not transferring the suit property.
The passing of the said order by the trial court after having
reached a conclusion that there was no prima facie case in favour
of the plaintiff was wholly uncalled for. The said finding regarding
lack of prima facie case pertained to the suit itself and was not
confined qua the case of respondents No.2 to 6 and, therefore, in
those circumstances, the order passed by the trial court cannot be
sustained.
Further, the order in the operative portion without any
discussion regarding the payment by the plaintiff to the Bank
though neither apparently any prayer in this regard was made by
the plaintiff nor the Bank made any submissions in this regard, is
also beyond the jurisdiction of the trial court.
So far as the judgment cited by learned counsel for the
plaintiff is concerned, the said judgment does not lay down that
even in a case where there is no prima facie case in favour of the
plaintiff, still orders of status quo must be granted. As in the
present case, the trial court has reached to a conclusion that there
is no prima facie case in favour of the plaintiff, which finding has
not been questioned by the plaintiff by filing any appeal, the
judgment has no application to the facts of the present case.
In view of the above discussion, the order dated 20.07.2016
passed by the trial court cannot be sustained.
Consequently, the appeal filed by the appellant is allowed,
the order dated 20.04.2016 is quashed and set aside and
application filed by the plaintiff under Order XXXIX, Rule 1 and 2
CPC is rejected.