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Shokat Ali v/s Gulam Sabir & Another

    CMPMO No. 69 of 2018 a/w CMPMO Nos. 201, 202 of 2019

    Decided On, 14 September 2020

    At, High Court of Himachal Pradesh

    By, THE HONOURABLE MR. JUSTICE AJAY MOHAN GOEL

    For the petitioners: M/s. Servedaman Rathore & Ankit Aggarwal, Advocates. For the Respondents: Karan Singh Kanwar, Advocate.



Judgment Text

Judge (Oral):

CMPMO No. 69 of 2018

1. By way of this petition filed under Article 227 of the Constitution of India, the petitioner assails order dated 30.09.2016, 1Whether the reporters of the local papers may be allowed to see the Judgment? passed by the Court of learned Civil Judge (Junior Division), Sirmaur District at Nahan in Civil Misc. App. No. 10/6 of 2016, vide which, an application filed under Order 39, Rules 1 & 2 read with Section 151 of the Code of Civil Procedure in Civil Suit No. 09/1 of 2016, stood dismissed by the learned Court below, as well as judgment dated 08.01.2018, passed by the Court of learned District Judge, Sirmaur District at Nahan in Civil Misc. Appeal No. 35CMA/ 14 of 2017, vide which, the appeal filed by the present petitioner against the order passed by the learned Trial Court, was dismissed.

2. Brief facts necessary for the adjudication of the present petition are as under:

Petitioner before this Court has filed a suit, inter alia, seeking declaration that certain relinquishment deeds which have been executed by him in favour of the present respondentsdefendants, are non est in the eyes of law, as the same were executed by him on account of some matrimonial dispute between him and his wife to avoid his liability and further, the same stood executed on account of some wrong legal advise. Alongwith the suit, the petitionerplaintiff has also filed an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure, seeking the relief of temporary injunction against the present respondentsdefendants, which stood dismissed by the learned Trial Court vide order dated 30.09.2016 by holding that the petitionerplaintiff was not entitled for any interim relief, as he was not able to substantiate any prima facie case & balance of convenience in his favour or the fact that in the event of denial of interim relief in his favour, he shall suffer any irreparable loss or injury.

3. In appeal, the order passed by the learned Trial Court has been upheld by the learned Appellate Court by dismissing the appeal of the present petitioner.

4. Feeling aggrieved, the petitioner has filed this petition under Article 227 of the Constitution of India.

5. I have heard learned counsel for the parties and have also gone through the orders passed by the learned Courts below.

6. The execution of relinquishment deeds by the present petitioner in favour of the respondentsdefendants is not in dispute, yet he has filed a suit seeking declaration that the execution of the relinquishment deeds is bad in law. This Court refrains from making any further comment on the merits of the suit, as the same is pending trial before the learned Trial Court and any observation that may be made by this Court on the merits of the case, may affect the interests of either party.

7. Suffice it to say that in order to obtain interim relief under Order 39, Rules 1 and 2 of the Code of Civil Procedure, three ingredients which a party is to prove before the Court are: (a) prima facie case; (b) balance of convenience; and (c) irreparable loss in the event of interim relief not being granted.

8. Coming to the facts of the present case, as the petitioner is seeking declaration for setting aside certain relinquishment deeds which he himself admits to have executed in favour of the respondentsdefendants, it cannot be said that there is a prima facie case in favour of the petitionerplaintiff, as it is not his case that said relinquishment deeds were on account of some fraud etc. so committed upon him. Similarly, it cannot be said that balance of convenience is in favour of the petitionerplaintiff, because once it is his own case that relinquishment deeds stood executed in favour of the defendants, then till the same are set aside by a competent Court of law, presumption is that the deeds are valid for all intents and purposes. Thirdly, the contention of the petitioner that in the event of the interim relief not being granted, he shall suffer irreparable loss or that the parties may alienate the properties during the pendency of the suit to the prejudice of the petitioner also has no merit, for the simple reason that as the matter is sub judice, it is but natural that the principle of lis pendens shall apply.

9. Now coming to the orders passed by the learned Courts below, during the course of arguments, learned counsel for the petitioner could not demonstrate that the findings which have been returned by the learned Courts below are contrary to the record available with learned Courts below while deciding the application filed under Order 39, Rules 1 and 2 of the Code of Civil Procedure and the appeal. In fact, the order passed by the learned Appellate Court in appeal clearly demonstrates that even the factum of possession of the suit land with the petitioner is in dispute, because the contents of the relinquishment deeds are to the contrary. Not only this, the observation which has been made by learned Trial Court while dismissing the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure is that the stand of the respondents before it was that the suit so filed by the petitioner is otherwise also barred by limitation. In these circumstances, as the petitioner was not able to prove the ingredients necessary to gain interim relief under Order 39, Rules 1 and 2 of the Code of Civil Procedure before the learned Courts below, this Court does not deems it proper to interfere with the orders which have been passed by the learned Courts below, which are subject matter of this petition.

10. Another point which the Court has to take into consideration while deciding the petition under Article 227 of the Constitution of India is that in such like matters, this Court is not to sit as an appellate Court. In case the orders passed by the learned Courts below which stand assailed before this Court under Article 227 of the Co

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nstitution of India contain one of the views which the Courts could have probably taken on the factual matrix before the Court, then this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India may not interfere with the same. Therefore also, this Court does not finds any merit in this petition and the same is accordingly dismissed, so also pending miscellaneous applications, if any. Interim order stands vacated. CMPMO Nos. 201 and 202 of 2019 11. In view of the order passed in CMPMO No. 69 of 2018, as no further orders are required to be passed in these petitions, the same are disposed of accordingly.
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