MANISH SHARMA UDASI Vs. UMA DEVI

JUDGEMENT

(1.) THE petitioner has challenged the order dated 16.8.2013 passed in Case No. M.C.A. 10/2013 by IVth Additional District Judge, Vidisha in this petition filed under Article 227 of the Constitution.

(2.) THE petitioners/plaintiffs filed a suit for declaration and injunction against the defendants. Along with the said suit, they have filed an application under Order 39 Rule 1 and 2 C.P.C. (Annexure P -5). Yet another application under the same provision was again filed on 10.3.2010. The respondents/defendants filed their reply. The trial Court by order dated 5.07.2010 (Annexure P -7) restrained the defendants from alienating, interfering or selling the property in any manner. Feeling aggrieved and dissatisfied with this order, the defendants/respondents filed a Miscellaneous Appeal under Order 43 Rule 1 C.P.C. which is decided by the trial Court on 16.8.2013.

(3.) SHRI Harish Dixit, learned counsel for the petitioners, criticized this order and submits that the trial Court has erred in interfering with the order passed by trial court. The finding of the Appellate Court in para 11 is bad in law and perverse in nature. It is contended that there was no occasion for the appellate court to give a finding that the trial Court has erred in not giving finding as to which defendants' shop is situated in portion "B" and who is getting rent out of it. He submits that at this stage, this exercise is unwarranted and foreign to the issue. He further submits that the trial Court has not erred in granting injunction as per the discretion on the basis of material on record. In support of his submission, he relied on (Ajra Habib Vs. B.K.Gupta, Divisional Commercial Manager, Central Railway, Jabalpur) and (Mohd. Mehtab Khan and others Vs. Khushnuma Ibrahim Khan and others, 2013 9 SCC 221).