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Judgment
A.K. Shrivastava, J.
By this appeal preferred under Order 43 Rule 1, CPC, the Appellant/Defendant No. 5 has challenged the validity of the order dated 28th March, 2003 passed by the trial Court allowing the application filed under Order 39 Rule 1 and 2, Code of CPC by the Plaintiff/ Respondent No. 1 thereby issuing temporary injunction against the Defendants that they will not cut under ground cable which are beneath the suit land.
The Plaintiff/Respondent No. 1 is a company incorporated under the Indian Companies Act, 1956 and has been provided with a licence by the Government of India, Department of Telecommunication to operate and establish the telephone services in the entire State of Madhya Pradesh for the benefit of the public at large, for which the Plaintiff is required to set up various switching units and exchanges in all the area of the Madhya Pradesh. According to the Plaintiff, in order to achieve the target to serve the public at large in respect to telecommunication facilities company bought an open area of Survey No. 1317/1 admeasuring 3060 Sq. ft. by registered sale deed dated 13th May, 1999 from Respondents No. 2 to 4. According to the Plaintiff, in the sale deed there is a clause that the vendor i.e. Defendants No. 2 to 4 shall always permit the vendee i.e. Plaintiff, an unobstructed and unhindered pass to the path way at the point as shown in the map without causing obstruction to the entry of the vendee or their representatives. According to the Plaintiff, on the disputed land after installation of the Cables the Defendants interfered and tried to cut those cables as such a suit for permanent injunction has been filed.
The Defendant No. 1 filed his separate written statement and Defendants No. 2 to 4 filed their separate written statement. The appeallant/Defendant No. 5 Vijay Kumar Agrawal also submitted his separate written statement.
Learned trial Judge before whom the discretion vest, after carefully going through the pleadings, affidavit and other material placed on record came to hold that there is a prima facia case in favour of the Plaintiff, if the act of the Defendants is not stopped by issuing temporary injunction, the Plaintiff would suffer irreparable injury and the balance of inconvenience was also found in favour of the Plaintiff. Eventually the application was allowed by issuing temporary injunction. Hence this appeal by Defendant No. 5. It is pertinent to mention here that other Defendants against whom the impugned order has been passed have not challenged the order.
In this appeal Shri Umesh Trivedi, learned Counsel for the Appellant, has contended that indeed the suit is not maintainable for the simple reason that the Appellant being a co-parcener, the property in which he is having share could not have sold by the other Defendants and even if it has been sold, a suit for partition ought to have been filed by the Plaintiff. Having not done so, the present suit for injuction is not maintainable. According to the learned Counsel, he is not party to the sale deed and, therefore, he is not bound by the transaction took place between the Defendants No. 1 to 4 and the Plaintiff. Thus, according to the learned Counsel the Courts below erred in law in allowing the application and issuing the order of temporary injunction.
Combatting the aforesaid submission of the learned Counsel for the Appellant, it has been contended by Shri Ajay Mishra, learned Sr. Counsel for the Appellant assisted by Shri Pushpendra Singh, that in the registered sale deed it has been specifically mentioned that by virtue of registered will dated 12/11/1971 executed by Ramdas Agrawal the property in dispute was bequeathed to the vendor i.e. Defendants No. 1 to 4 and, therefore, the valid transaction has been taken place between the Plaintiff and Defendants No. 1 to 4. Learned Counsel has also invited my attention to Clause 5 and 6 of the sale deed in which the vendors have undertaken to allow the vendee to dig pit hole on the passage portion of the land which is in the ownership of the vendors. The vendors further undertaken not to obstruct and unhindered the passage of the land as shown in the map attached to the sale deed. Learned Counsel further submitted that according to the Defendant No. 5/Appellant that if the pit holes are dug and the cables will be inserted in it, it will prejudice his privacy. According to the learned Counsel when the suit was filed the cables were already laid down beneath the suit land and, therefore, the Courts below has rightly passed the impugned order.
After having heard learned Counsel for the parties, I am of the view that this appeal deserves to be dismissed. Admittedly the land which has been purchased by the Plaintiff there is an adjoining passage. There is a condition in the sale deed that the vendors would not create any hindrance if pit holes are dug in the passage. On going through the sale deed it is transpired that by virtue of registered will deed dated 12/11/ 1971 executed by Ramdas Agrawal, the vendors became owner and accordingly they sold the land to the Plaintiff. The question is whether the Defendant No. 5/Appellant is having any right, title and interest in the disputed land which is adjoining to the sold property is a matter of enquiry. Prima facie there is no document on record in order to show that Defendant No. 5/Appellant is having any right, title and interest in the suit property. It is well settled in law that at the time of consideration of application of temporary injunction, only a prima facie case is to be demonstrated. At this juncture, the Plaintiff is not required to prove and demonstrate his clear legal title and it should be left open to decide these disputed questions of fact at the time of judgment.
One important fact which the trial Court has taken into consideration, and which could not be marginalised and blinked away is that the Plaintiff-company is carrying on the business of telecommunication to serve the people at large by providing them telephone connection and if in this manner they are not permitted to allow or to carry out their business, not only the Plaintiff, but, the public at large would suffer irreparable loss. On going through the written statement filed by the Appellant, it is gathered that on the date of filing of the suit cables were already installed and, therefore, according to the Division Bench of this Court in the case of Durg Transport Co. Private Ltd. Vs. Regional Transport Authority and Others, , lateron relied by this Court in the case of State of M.P. v. Hariom General Industries and another, AIR 1992 MP 286, it has been held that the ''status quo'' prevailing on the date of institution of the suit should be preserved. On going through the averments made in the written statement as well as the finding of the trial Court holding that on the date of filing of the suit the cables were already installed, in my opinion, the learned trial Court did not commit any error in allowing the application.
This Court while exercising jurisdiction under Order 43 Rule 1, Code of CPC is enjoying a limited jurisdiction. It is well settled in law that allowing or disallowing the application of temporary injunction, is a discretionary order and discretion vest in the Court before whom the application is submitted and if that Court, has exercised the jurisdiction by applying the correct principle of law, this Court would not interfere while exercising the jurisdiction conferred under Order 43 Rule 1, CPC. On going through the impugned order, it is gathered that the trial Court by applying the correct principle of law, prima facie found the case of Plaintiff, it was also rightly held that the Plaintiff would suffer irreparable loss in case application is not allowed and the balance of convenience was found to be in his favour. Therefore, in my view, the trial Court has rightly allowed the application.
In the result, the appeal is devoid of any substance and the same is hereby dismissed. Parties are directed to bear their own costs. Looking to the peculiar facts and circumstances of the case, the trial Court is hereby directed to dispose of the case as early as possible, preferably within a period of one year.