Nand Kishore and Another vs Smt. Vidhya Devi and Others

Gopal Krishan Vyas, J.—In this misc. appeal, the appellants have challenged the order dated 28.4.2008 passed by Addl. District Judge, Gulabpura (Bhilwara) in Civil Misc. Case No. 35/2006 whereby the application filed by the respondent No. 1 under Order 39 Rule 1 and 2 C.P.C. was allowed.

As per brief facts of the case, the respondent No. 1 - Smt. Vidhya Devi filed a suit for partition being daughter of late Shri Jamnalalji S/o Late Shri Sundelalji Jaisawal. The appellant is real brother of plaintiff Smt. Vidhya Devi. Therefore for partition of the property of late Shri Jamnalalji, who died on 17.12.2004, after request for partition, a legal notice was sent by the plaintiff - respondent No. 1 Smt. Vidhya Devi whereby she claimed 1/3rd share in the property of late Shri Jamnalalji. When (1) whether any prima facie case is made out, (2) whether balance of convenience lies in favor of the plaintiff and (3) if the order is not passed in favor of the applicant then he will suffer irreparable loss. But, in this case, all these three ingredients for granting the temporary injunction are absent. Learned trial Court though heard arguments at length but decided the application in very casual manner, that too, without considering the mandatory conditions for granting interim order as required for deciding the application under Order 39 Rule 1 and 2 CPC.

I have perused the impugned order so also considered the arguments advanced by the parties. After perusal of the order impugned, it is abundantly clear that learned trial Court has failed to consider three important points, which are required to be seen at the time of deciding the application for temporary injunction. Learned trial Court ought to have considered the matter whether prima facie case is made out or balance of convenience lies in favor of the applicant and if order will not be passed in favor of the applicant then he will suffer irreparable loss but none of the grounds are in existence in the order though in reply filed to the stay application, all the facts were brought to the notice of the trial Court and detailed reply was filed which is not considered and in very casual manner, learned trial Court has decided the stay application.

In this view of the matter, while admitting this misc. appeal, the impugned order dated 28.4.2008 was stayed by this Court on 18.7.2008.

After perusal the impugned order, it is abundantly clear that without consider in the material available on record or without considering three essential ingredients for granting temporary injunction, learned trial Court has passed the impugned order, which is not permissible under the law.

In this view of the matter, the order impugned dated 28.4.2008, is not in consonance with the provisions of law. Hence, this appeal is allowed. The order impugned dated 28.4.2008 is hereby quashed and set aside and the case is remitted to learned trial Court for deciding the stay application afresh after considering the pleading of the application filed under Order 39 Rule 1 and 2 C.P.C. as well as the reply to the application filed by the appellants. The application shall be decided afresh within a period of two months from the date of receipt of certified copy of this order.