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Judgment
By this petition, the petitioner (original defendant no.1) has challenged order dated 03Â10Â2016, passed by the District JudgeÂ3, Washim
(appellate Court), dismissing an appeal filed by her. By the said appeal, she had challenged order dated 08Â07Â2016, passed by the Court of Civil
Judge, Senior Division, Washim (trial Court), granting application for temporary injunction filed by the respondent (original plaintiff). The respondent
filed suit for declaration, possession and permanent injunction against the petitioner and her minor son concerning agricultural property in village
Shahapur, Tq. Mangrulpir, District Washim, claiming that she was the owner and in possession of the suit property after the death of her husband
Ramkrushna Marge. Along with the suit, the respondent filed an application under Order XXXIII Rule 1 of the Code of Civil Procedure,1908 (CPC)
to sue as a forma pauperis. During the pendency of the said application, the respondent filed an application under Order XXXIX Rules 1 and 2 read
with Section 151 of the CPC for grant of temporary injunction against the petitioner (defendant). It was claimed that the respondent was in possession
of the suit property and that the petitioner was seeking to interfere with her peaceful possession and cultivation of the suit property. The said
application was opposed by the petitioner. It was claimed that the defendant (petitioner) was married to deceased Ramkrushna Marge and defendant
no.2 was born out of their marriage. It was further claimed that a will deed dated 20Â03Â2010 was executed by the said Ramkrushna in favour of
her minor son (defendant no.2) and that upon the death of said Ramkrushna on 12Â05Â2015, the petitioner was in continuous possession and
cultivation of the suit property.
By order dated 08Â07Â2016, the trial Court found that a marriage certificate had been placed on record issued by the Gram Panchayat, showing
that the respondent and said Ramkrushna Marge were married in the year 2002. It was also found by the said Court on examination of the documents
placed on record that 'Perepatrak' i.e. crop statements showed certain overwriting and interpolation concerning entries for the years 2014Â2015 and
2015Â2016. It was found to be surprising by the said Court that entries were made in favour of the petitioner for the year 2014Â2015, even when
Ramkrushna died on 12Â05Â2015. In this situation, the said documents were found not to be worthy of being considered as relevant for showing
possession of the petitioner herein. In the absence of any such reliable documents, the Court relied upon the pleadings of the respondent coupled with
the marriage certificate placed on record. It is relevant that an affidavit dated 02Â07Â2016 of a neighbour was also placed on record that vouched for
the respondent being in possession of the suit property. On this basis the application for temporary injunction was allowed by the said Court. The said
order was challenged by the petitioner by filing appeal before the appellate Court. By the impugned order dated 03Â10Â2016, the appellate Court
confirmed the findings of the trial Court. The appellate Court considered the said 'Perepatrak' in detail and found that there were markings of effacing
of the names in the said documents pertaining to the years 2014Â2015 and 2015Â2016. It was found that the claim raised by the petitioner and her
minor son was based on a Will Deed, which was itself a subject matter of the suit. It was found by the appellate Court that in the Aadhar Card, the
name of the petitioner was shown as Rekha Devbaji Bothe, although she claimed to be married to the said Ramkrushna. On the basis of the said
documents, pleadings, evidence and material placed on record, the appellate Court dismissed the appeal and confirmed the order passed by the trial
Court. The concurrent orders passed in favour of the respondent are subject matter of the challenge in the present Writ Petition.
Shri A.R. Deshpande, learned Counsel appearing on behalf of the petitioner raised twofold contentions in support of the present writ petition. Firstly,
it was contended that the application for temporary injunction before the trial Court was itself not maintainable because there was no suit filed and
pending in the eyes of law until the application filed by the respondent for suing as forma pauperis under Order XXXIII Rule 1 of the CPC was yet to
be decided. It was claimed that until and unless the said application was decided, the application for temporary injunction could not have been
considered by the trial Court. Secondly, it was contended on merits that the respondent being the plaintiff was required to stand on her own legs and
that the discrepancies found in 'perepatrak' i.e. crop statements produced on behalf of the petitioner (defendant no.1) could not accrue to the benefit
of the respondent. It was contended that there was no material placed on record, on behalf of the respondent to show she was indeed in possession of
the suit property to claim an order of temporary injunction in her favour. On this basis, it was submitted that the writ petition deserved to be allowed
and the concurrent orders passed by the Court below deserved to be set aside.
Per contra, Mrs. Renuka Sirpurkar, learned Counsel appearing on behalf of the respondent submitted that the contention raised on behalf of the
petitioner was not sustainable because the trial Court was justified in taking up and deciding the application for temporary injunction even when the
application for suing as forma pauperis filed by the respondent was pending. It was submitted that the Court was required to pass urgent orders to
ensure that the property in question was not wasted and no prejudice was caused to the respondent during the pendency of the said application filed on
her behalf for suing as forma pauperis. It was submitted that if the application stood allowed, the respondent could very well continue to pursue the
suit while if the application was rejected, the Court would still grant time to the respondent to pay court fees and to continue to pursue the suit. In
these circumstances, when urgent orders on temporary injunction were sought, consideration of such a prayer could not be postponed merely because
the application for suing as forma pauperis was pending. Reliance was placed on the judgments of this Court reported in 1943 ILR 138 (Totaram Wani
and others vs Dattu Mangu Wani and others) and 1947 ILR 784 (Bai Sakri vs Bai Dhani).
On merits, it was contended that there was sufficient material placed on record on behalf of the respondent to show that the order of temporary
injunction was necessary and in the interest of justice in the present case and that no fault could be found with the concurrent findings of the Courts
below.
Heard learned Counsel for the parties. As regards the first contention raised on behalf of the petitioner, a perusal of the two judgments relied upon,
on behalf of the respondent shows that the aforesaid question has been squarely considered and decided in the said judgments. It has been held in the
case of Totaram Wani (supra) that when it becomes necessary to have prompt action in order to prevent suit property from being made away with by
the defendant, the Court can certainly take such action as would be necessary even if application for suing as forma pauperis is pending. In the said
case, the Court was concerned with the question of appointing a commissioner and for grant of exÂparte injunction, even when the application for
suing as forma pauperis was still pending. It was held that the Court could certainly consider the aspect of appointment of Commissioner and grant of
injunction, notwithstanding the fact that the application for suing as forma pauperis was still pending. In the other judgment in the case of Bai Sakri
(supra), reliance was placed on the reasoning given in the judgment of Totaram Wani (supra) and the said reasoning was approved. The Division
Bench of this Court referred to Order XXXIX Rule 1 of the CPC and emphasized that in a situation where it appeared to the Court that it was
necessary to preserve the suit property, the Court could pass appropriate orders even when an application for suing as forma pauperis was pending.
A perusal of Order XXXIX Rule 1 of the CPC shows that power is exercised by the Court when a party seeking urgent orders on the application
for interim injunction approaches the Court. The situation ought not to be materially different if the suit filed by the plaintiff is accompanied by an
application for suing as forma pauperis under Order XXXIII Rule 1 of the Code. The said application would either be allowed or rejected. In case it is
allowed, the applicant would certainly be able to pursue the suit filed by her and even if it stands rejected the Court would obviously grant time to such
an applicant to deposit Court fee within a particular period of time,. Upon such deposit, the applicant would be able to pursue the suit. It was only
when the applicant failed to deposit Court fee in stipulated time that the proceedings would lapse. But the decision on urgency of the suit and
entitlement of a person approaching the Court for grant of temporary injunction ought not to be contingent on decision of such an application for suing
as forma pauperis. Therefore, applying the ratio of the judgments relied upon, on behalf of the respondent, the first contention raised by the petitioner
is rejected.
On merits of the case, a perusal of the concurrent orders passed by the two Courts below shows that the respondent placed on record a marriage
certificate showing that she was indeed married to one Ramkrushna. She also pleaded that upon the death of the said Ramkrushna (husband) on 12Â‐
05Â2015, she was in ownership and possession of the suit property. She also placed on record affidavit dated 02Â07Â2016 of a neighbour stating that
the respondent was indeed in possession and cultivating the suit property at the time of filing of the suit, the application for suing as forma pauperis and
the application for grant of temporary injunction.
On the other hand, the petitioner claimed that a Will Deed dated 2003Â2010 was executed in favour of her minor son by the said Ramkrushna to
whom she was allegedly married. She claimed that by virtue of the said Will Deed, upon the death of Ramkrushna on 12Â05Â2015, she and her minor
son had come in possession and cultivation of the suit property. Reliance was placed on the document i.e. 'perepatrak' (crop statements) pertaining to
the years 2014Â 2015 and 2015Â2016 to support the said contention raised on behalf of the petitioner. On this basis, it was contended that the
respondent was not entitled to her prayer for temporary injunction. The Courts below have concurrently found that in the said crop statements for the
years 2014Â2015 and 2015Â2016, there was effacing of names, overwriting and interpolation. It was also found to be surprising by the Courts below
that even when the death of Ramkrushana occurred on 12Â05Â2015, the crop statement pertaining to the year 2014Â2015 showed the names of the
petitioner and her minor son. On this basis, the Courts below refused to take into consideration the said crop statements as a basis for deciding
possession of either party in the suit property. No fault can be found with the said approach adopted by the Courts below, because a perusal of the
said crop statements indeed shows overwriting. The petitioner has claimed ownership of the suit property and consequently possession over the same
from 2015 onwards on the basis of Will Deed dated 20Â03Â2010. But the said Will Deed is itself a subject matter of challenge in the suit filed by the
petitioner. It is also an admitted position on record that in the probate proceedings initiated by the petitioner in connection with the said Will Deed dated
20Â03Â2010, the respondent has raised objections. Thus, the said Will Deed dated 20Â03Â2010 cannot become the basis for the petitioner to deny
the claim of temporary injunction made on behalf of the respondent.
Even otherwise, the petitioner has failed to place on record any cogent material to show that she was in any manner related to the said
Ramkrushna. The Courts below found that even in the Aadhar Card issued in the name of the petitioner, her name is shown as Rekha Devbaji Bothe.
The record further shows that when the bailiff sought to serve summons/warrants on the petitioner, she refused to accept such warrants/summons
issued in the name of Rekha Ramkrushna Marge, on the basis that she was Rekha Devbaji Bothe. Thus these documents, prima facie, show that the
petitioner claimed that she was married to Ramkrushna Marge on the one hand and on the other hand she was asserting her identity as Rekha Devbaji
Bothe and not Rakha Ramkrushna Marge. Although, there cannot be any quarrel with the proposition that the applicant/plaintiff should stand on her
own legs when claiming an order of temporary injunction, the material placed on record in the present case certainly shows that the respondent/
original applicant/plaintiff has placed on record some material in support of her claim, while the material placed on record by the petitioner prima facie
shows interpolation and overwriting in crucial documents and a denial of any relationship with the said Ramkrushna. The aforesaid affidavit of
neighbour filed on record showing that the respondent was in cultivating possession of the suit property further supports the case of the respondent.
Such material on record demonstrates that no error was committed by the Courts below in granting and confirming the order of temporary injunction in
favour of the respondent.
In the light of the above, it is evident that the petitioner failed to make out a case in her favour. Accordingly, the Writ Petition is dismissed and the
orders passed by the Courts below are confirmed. Consequently, no orders are required to be passed on the Civil Applications.