# Naveen Kumar Sharma & Anr v. State Of U.P. & Anr

- **Citation:** (2023) 5 ILRA 1214
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-06
- **Case number:** Matters Under Article 227 No. 271 of 2023
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naveen-kumar-sharma-anr-v-state-of-u-p-anr-50161
- **Pages:** 8

## Headnote

A. Criminal/Banking Law - Negotiable
Instruments Act, 1881: Section 138 -
Handing over of the cheques by way of
security per se would not extricate the
accused from the discharge of liability
arising from such cheques. (Para 8, 18)

In the present case, whether the account of
which said cheque was drawn, was having
sufficient balance to pay the amount gathered
by said cheque worth Rs. 90,000,00/- drawn in
favour of respondent, whether petitioner was
having some other account apart from the
5 All. Naveen Kumar Sharma & Anr. Vs. State of U.P. & Anr.
1215
account which was blocked as said above on
which cheque would be drawn in favour of the
respondents in discharge of certain debt and
liability as claimed by her, whether the
petitioner indeed intended to got the cheque
encashed, all these questions are to be decided
during trial and the grounds taken in present
petition can be raised by the petitioner at the
stage of leading defence. The petitioner has
claimed that said cheque was issued in favour of
the respondent No. 2 as security cheque, as
huge
amount
was
outstanding
to
the
respondent No. 2 and for that reason after
completing all formalities of disassociation from
firm the cheque was to be encashed, is dispelled
by the proposition of law laid down by Hon'ble
Apex Court.

The impugned orders are in accordance with
law and no illegality or irregularity is found
therein. In that view of the matter, trial court is
required to record evidence of the parties and
arrive at an independent conclusion as to
whether an offence is made out u/s 138 of N.I.
Act or not. (Para 18)

Writ petition dismissed. Summoning order
is affirmed. (E-4)

Precedent followed:

## Text

1214 INDIAN LAW REPORTS ALLAHABAD SERIES
also failed to submit any proof either before
the prescribed authority or the appellate
authority to show the reason to disbelieve
the statement of Area Lekhpal. In the
present case also, the findings have been
recorded on the basis of the Khasra of the
relevant year i.e. 1402 Fasli and supported
by the evidence of Area Lekhpal, Lekhpal
who prepared the file and the Assistant
Registrar, Kanoongo, which have not been
controverted by the petitioner at any stage
by any cogent evidence.

35. Coming back to the facts of the
case in hand and considering the same in
the light of the law and the case laws,
referred above, it is apparent that the notice
was rightly issued to the petitioner in
accordance with law and as per Section 29
of the Act of 1960. The plea of limitation
and res-judicata taken by the petitioner are
not tenable as discussed above. The plea
that notice was required to be given to the
sons of the petitioner is also not tenable
because it was never taken except in the
supplimentary affidavit filed in November
2022, therefore since it was not taken
before
the
Prescribed
Authority
or
Appellate Authority and even in this
petition upto the stage of rejoinder affidavit
it is not considerable, even otherwise the
petitioner has failed to give the relevant
details in this regard and as admitted by
learned counsel for the petitioner, the
separate chaks were allotted in 1998 i.e.
after passing of the order by the Prescribed
Authority. All the land of the petitioner,
except abadi and grove land of petitioner
has been found irrigated on the basis of
Khasra of the relevant year, material and
evidence on record, and the factual finding
recorded by the prescribed authority is
unchallenged and no material contrary to it
has been produced, therefore the factual
finding cannot be interfered by this Court.
Thus, this Court is of the view that the
impugned orders have rightly been passed
in accordance with law and after affording
sufficient opportunity to the petitioner. The
writ petition has been filed on mis
conceived and baseless grounds, therefore
it lacks merit and liable to be dismissed.

36. The writ petition is, accordingly,
dismissed. No order as to costs.
----------
(2023) 5 ILRA 1214
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.04.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Matters Under Article 227 No. 271 of 2023

Naveen Kumar Sharma & Anr.
 ...Petitioners
Versus
State Of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Utkarsh Dixit, Sri Anupam Shyam
Dwivedi, Sri Sudhir Dixit

Counsel for the Respondents:
G.A., Sri Ardhendu Shekhar Sharma, Sri
Ram Babu Sharma

A. Criminal/Banking Law - Negotiable
Instruments Act, 1881: Section 138 -
Handing over of the cheques by way of
security per se would not extricate the
accused from the discharge of liability
arising from such cheques. (Para 8, 18)

In the present case, whether the account of
which said cheque was drawn, was having
sufficient balance to pay the amount gathered
by said cheque worth Rs. 90,000,00/- drawn in
favour of respondent, whether petitioner was
having some other account apart from the
5 All. Naveen Kumar Sharma & Anr. Vs. State of U.P. & Anr.
1215
account which was blocked as said above on
which cheque would be drawn in favour of the
respondents in discharge of certain debt and
liability as claimed by her, whether the
petitioner indeed intended to got the cheque
encashed, all these questions are to be decided
during trial and the grounds taken in present
petition can be raised by the petitioner at the
stage of leading defence. The petitioner has
claimed that said cheque was issued in favour of
the respondent No. 2 as security cheque, as
huge
amount
was
outstanding
to
the
respondent No. 2 and for that reason after
completing all formalities of disassociation from
firm the cheque was to be encashed, is dispelled
by the proposition of law laid down by Hon'ble
Apex Court.

The impugned orders are in accordance with
law and no illegality or irregularity is found
therein. In that view of the matter, trial court is
required to record evidence of the parties and
arrive at an independent conclusion as to
whether an offence is made out u/s 138 of N.I.
Act or not. (Para 18)

Writ petition dismissed. Summoning order
is affirmed. (E-4)

Precedent followed:

1. Womb Laboratories Pvt. Ltd. Vs Vijay Ahuja &
ors., 2019 Legal Eagle (SC) 1447 (Para 8)

2. M/s Go Go International Pvt. Ltd. Vs M/s
Lilliput Kidswear, Karnataka High Court in
Criminal Petition No. 2726 of 2014 (Para 16)

3. D.P. Gulati Manager Accounts M/s Jetking Infotrain
Ltd. Vs State of Uttar Pradesh and another, Supreme
Court, judgment dated 31.03.2015, Crl. Appeal No.
1550 of 2014 (Para 17)

Precedent cited:

1. M/s Ceasefire Industries Ltd. Vs State & ors.,
decided on 01.05.2017 (Para 10)

2. Rajesh Meena Vs St. of Har. (Para 11)

Present
petition
prays
for
suitable
direction
setting
aside
the
entire
proceedings of Criminal Complaint Case
No. 496 of 2022, u/s 138 N.I. Act, pending
before the Court of Ld. Additional Civil
Judge,
(J.D.)/Judicial
Magistrate,
Bulandshahar as well as the impugned
summoning
order
dated
13.10.2022
passed by the Court of Ld. Additional Civil
Judge
(Junior
Division)/Judicial
Magistrate and impugned judgment and
order dated 13.12.2022 passed by Court
of Ld. Additional Sessions Judge/Fast
Track Court, Bulandshahar in Crl. Revision
No. 361 of 2022.

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Instant petition under Article 227
of the Constitution of India has been filed
with following prayer:-

(i) Issue an order or direction of
suitable nature setting aside the entire
proceedings of Criminal Complaint Case
No. 496 of 2022 (Smt. Shashi Sharma Vs.
M/s Naveen Autos & Another, under
Section 138 N.I. Negotiable Instruments
Act,
P.S.
Kotwali
Nagar
District
Bulandshahar, pending before the Court of
Ld. Additional Civil Judge, (J.D.)/Judicial
Magistrate, Court No. 9, Bulandshahar as
well as the impugned summoning order dated
13.10.2022 passed by the Court of Ld.
Additional
Civil
Judge
(Junior
Division)/Judicial Magistrate, Court No. 9,
Bulandshahar in Crl. Complaint Case No.
496 of 2022 (Smt. Shashi Sharma Vs. M/s
Naveen Auto and Another) under Section 138
of N.I. Act, P.S. Kotwali Nagar, District
Bulandshahar (Annexure No. 6 to this
petition) and impugned judgment and order
dated 13.12.2022 passed by Court of Ld.
Additional Sessions Judge/Fast Track Court,
Court No. 2, Bulandshahar in Crl. Revision
No. 361 of 2022.

(ii) Issue any other order or
direction in the like nature, which this
1216 INDIAN LAW REPORTS ALLAHABAD SERIES
Hon'ble Court may deem fit and proper in
the circumstances of the case.

2. I have heard learned counsel for the
petitioner,
learned
counsel
for
the
respondent no. 2 and learned A.G.A. for the
State and perused the record.

3. Factual matrix of the case in brief
are that respondent no. 2 filed a complaint
which is registered as Case No. 496 of
2022 (Smt. Shashi Sharma Vs. M/s Naveen
Auto and Another), under Section 138 of
N.I. Act, P.S. Kotwali Nagar, District
Bulandshahar
with
averment
that
complainant and respondent no. 2 are
working in a partnership firm in the name
of M/s Naveen Auto at Raje Babu road,
Bulandshahar. Complainant and respondent
no. 2, both are partners in the firm. This
firms deals in business of TVS bike spare
parts and repairing etc. In the profits of
firm, share of complainant is 30%, share of
wife of respondent no. 2 is 30%, share of
respondent no. 2 is 20% and share of Uma
Sharma is 20 %.. The responden no. 2 has
been directed to transact the business on
behalf of the firm, however, for last three
years
no
profit
was
given
to
the
complainant and she was avoided by
respondent no. 2 in respect of affairs of the
firm. When she negotiated with respondent
no. 2, he asked her to terminate her
relations with the firm and this was agreed
between the complainant and partners of
the firm that Rs. 3,00,000, 00/- will be
given to the complainant in lieu of her 30%
share and profits. This was also agreed
between
partners
that
until
Rs.
3,00,000,00/- is paid to the complainant,
she would keep on receiving the profits and
on that count a cheque of Rs. 90,00,000/-
was issued by the firm in favour of the
complainant dated 15.6.2022 which was
signed by respondent no. 2 as authorized
signatory of the firm. This cheque was
drawn on Canara Bank account of the firm.
The complainant presented the cheque on
same day at his Bank PNB, Yamunaparm
Branch Bulandhshar on her bank account,
however, the same was dishnoured and
returned on 20.7.2022 with endorsement
"account blocked", thus consequently the
cheque got bounced. When she asked about
this to respondent no. 2, he could not give
any satisfactory answer and misbehaved
with her. She sent a demand notice on
25.7.2022 at his address which was
received by him on 28.7.2022, however, its
wrong reply was sent by them on 2.8.2022,
therefore, complainant had no option but to
file present complaint for prosecution of
the firm and respondent no. 2 for charge
under Section 138 of N.I. Act.

4. Learned Magistrate recorded
statement of complainant under Section
200 Cr.P.C. and her witnesses under
Section 202 Cr.P.C. and passed impugned
summoning order whereby the present
petitioners were summoned to face trial for
charge under Section 138 of N.I. Act.

5. Feeling aggrieved by the impugned
summoning order dated 13.10.2022 passed
by learned Additional Civil Judge, (Junior
Division), Court No. 9, Bulandshahar, the
present petitioners/accused in the case filed
a Criminal Revision No. 361 of 2022,
Naveen Kumar Sharma and Another Vs.
Shashi Sharma and another, before Court of
Session Judge, Bulandshahar, however, the
said revision was dismissed by learned
Additional Session Judge/FTC, Court No.
2,
Bulandshahar
vide
order
dated
13.12.2022. The impugned order passed by
learned magistrate was affirmed therein.
The ground taken in said revision was that
the share of partners was decided by firm
which is shown in the complaint which is
5 All. Naveen Kumar Sharma & Anr. Vs. State of U.P. & Anr.
1217
admitted and accordingly Smt. Shashi
Sharma, complainant was allotted 30%
share in the firm, whereas accused Naveen
and his wife was allotted 20%, 30% share
respectively and Uma Sharma was allotted
20% share in the firm. The disputed
Cheque No. 149610 for amount of Rs.
90,00,000/- was given to the complainant
as it was agreed between the partners that
she will complete all the formalities of
disassociating from the firm herself and till
completion
of
the
formalities
and
accounting, she will keep the cheque safely
with her. As per balance sheet of the firm
Rs. 1,53, 34,470/- was outstanding against
Shashi Sharma to the firm. After receiving
the said cheque complainant Shashi Sharma
with mala fide intention wrote a letter to
bank officers on 10.11.2021 to block and
seize the Account No. 2154261011432 of
the firm and she also wrote to regional
office of the bank that as there was conflict
among partners of the firm, therefore, the
said account of the firm be seized and
blocked and on account of the said letter
dated 30.11.2021 of the complainant,
account of the firm was blocked since
1.12.2021.

6. Learned counsel for the petitioners
submitted that specific grounds were taken
by the revisionist/accused persons in
criminal revision before the court of
session that said cheque was given to the
complainant/respondent no. 2 as security in
pursuance of an understanding reached
between the partners and she had to keep
the cheque safely but she presented the
same immediately to embarrass and coerce
the petitioners. This fact also brought to the
notice of the revisional court that the said
cheque was not dishonoured on the ground
of insufficiency of funds or amount not
arranged for, which are enumerated as
ground for prosecution under Section 138
of N.I. Act but on ground that account was
blocked and this ground is not covered
under Section 138 of N.I. Act, therefore, in
view of dishonour of cheque on the ground
that account was blocked, the petitioners
cannot be prosecuted for charge under
Section 138 of N.I. Act, inasmuch as the
account was blocked at the instance of
complainant herself by issuing letters to the
concerned bank to block and seize the
account of firm due to conflict between
partners of the firm, therefore, both the
orders of court below are not sustainable
and are liable to be set aside and
proceedings drawn against the petitioners
before the trial court deserve to be quashed
otherwise
the
petitioners
will
face
irreparable loss without any legal basis.

7. Per contra, learned counsel for the
respondent no. 2 submitted that there is no
illegality, irregularity or any proprietary in
the impugned order passed by court below.
The complaint filed by the respondent no. 2
under Section 138 of N.I. Act is based on
just a legal grounds and grounds taken by
the petitioners in present petition under
Article 227 of the Constitution of India
were considered by learned revisional court
and after passing a detailed order or
considering the points involved in the
matter. Learned Additional Sessions Judge
dismissed criminal revision filed by the
petitioners against summoning order dated
13.10.2022 passed by learned magistrate.

8. Learned counsel for the respondent
cited a judgment of Hon'ble Apex Court in
Womb Laboratories Pvt. Ltd. Vs. Vijay
Ahuja and Ors., 2019 Legal Eagle (SC)
1447, wherein Hon'ble Apex Court in
paragraph nos. 5 and 6 has held as follows:-

"5. In our opinion, the High
Court has muddled the entire issue. The
1218 INDIAN LAW REPORTS ALLAHABAD SERIES
averment in the complaint does indicate
that the signed cheques were handed over
by the accused to the complainant. The
cheques were given by way of security, is a
matter of defence. Further, it was not for
the discharge of any debt or any liability is
also a matter of defence. The relevant facts
to countenance the defence will have to be
proved - that such security could not be
treated as debt or other liability of the
accused. That would be a triable issue. We
say so because, handing over of the
cheques by way of security per se would
not
extricate
the
accused
from
the
discharge of liability arising from such
cheques.

6. Suffice it to observe, the
impugned judgment of the High Court
cannot stand the test of judicial scrutiny.
The same is, therefore, set aside."

9. Provisions of Section 138 of N.I.
Act are reproduced as under:-

"138 Dishonour of cheque for
insufficiency, etc., of funds in the account. -
-Where any cheque drawn by a person on
an account maintained by him with a
banker for payment of any amount of
money to another person from out of that
account for the discharge, in whole or in
part, of any debt or other liability, is
returned by the bank unpaid, either
because of the amount of money standing to
the credit of that account is insufficient to
honour the cheque or that it exceeds the
amount arranged to be paid from that
account by an agreement made with that
bank, such person shall be deemed to have
committed an offence and shall, without
prejudice to any other provisions of this
Act, be punished with imprisonment for 1
[a term which may be extended to two
years], or with fine which may extend to
twice the amount of the cheque, or with
both: Provided that nothing contained in
this section shall apply unless--

(a) the cheque has been presented
to the bank within a period of six months
from the date on which it is drawn or
within the period of its validity, whichever
is earlier;

(b) the payee or the holder in due
course of the cheque, as the case may be,
makes a demand for the payment of the
said amount of money by giving a notice in
writing, to the drawer of the cheque,
20[within thirty days] of the receipt of
information
by
him
from
the
bank
regarding the return of the cheque as
unpaid; and

(c) the drawer of such cheque
fails to make the payment of the said
amount of money to the payee or, as the
case may be, to the holder in due course of
the cheque, within fifteen days of the
receipt of the said notice.

10. Learned counsel for the petitioner
placed reliance on a judgment of Delhi
High Court in M/s Ceasefire Industries
Ltd. Vs. State & Ors. On 1 May, 2017,
wherein petitioner had instituted two
complaint under Section 138 of N.I. Act
against the respondent accused in question
of dishonor of two cheques issued by the
respondent with Okhla Industries area,
New Delhi, however, the said cheques were
returned by the bank with memo indicating
reasons for returned to be "account
blocked". The complainant after return of
the said cheques unpaid by the bank issued
legal demand notice calling upon the
respondents to pay and upon default in
payment on their part a complaint was
instituted. Learned magistrate summoned
the 2nd to fourth respondents after holding
5 All. Naveen Kumar Sharma & Anr. Vs. State of U.P. & Anr.
1219
enquiry under Section 200 and 202 Cr.P.C.,
however,
learned
magistrate
after
conducting trial acquitted the respondent of
charge under Section 138 of N.I. Act. Delhi
High Court while affirming the verdict of
acquittal of respondent passed by learned
magistrate observed that bank, which has
returned cheques unpaid which had made it
clear that account has been blocked. It is
clear that complainant itself was aware that
account has been frozen in terms of
directions of some statutory authority. In
these circumstances the reason for return of
the cheques unpaid being not what is
envisaged in Section 138 of the N.I. Act,
these petitions are devoid of merit and are
dismissed.

11. In another judgment cited by
learned counsel for the petitioner in Rajesh
Meena Vs. State of Haryana and Others,
High Court held that in given facts, this
Court has no hesitation in holding that on
the date when cheques were presented by
the complainant to the drawee bank, the
account holder was not maintaining the
said account. Resultantly, in the absence of
this material condition, it cannot be said
that offence punishable under Section 138
of the N.I. Act would be made out.

12. From perusal of record it appears
that petitioner Naveen Kumar had also filed
a complaint against respondent no. 2 before
the court of Additional Civil judge (Junior
Division)/Judicial Magistrate, Court No. 9,
Bulandshahar, with allegation of misuse of
a security cheque worth Rs. 90,00,000/-
given to her by the victim as security and
writing to the bank where account of firm
was being maintained to block the same
and on her instance, the said account was
blocked.
In
that
complaint,
learned
magistrate summoned the respondent no. 2
Smt. Shashi Sharma and her husband for
charge under Section 417, 406, 420, 504,
506 IPC vide order dated 17.11.2022,
however, the said opposite parties in said
complaint Naveen Kumar Sharma and Smt.
Shashi Sharma filed a petition under
Section 482 Cr.P.C. No. 40041 of 2022
before
this
Court
for
quashing
the
proceedings of said complaint case in
which
this
Court
vide
order
dated
5.12.2022 stayed proceedings of said
complaint case for a period of six weeks.

13. From perusal of record it appears
that two complaint under Section 138 of
N.I. Act are filed, one by present
respondent no. 2 and one by her husband
for dishonor of cheque issued by the firm
amount to Rs. 90,00,000/- and Rs.
12,50,000/- respectively.

14. The information has been given
by Canara Bank by public Information
Officer/Divisional Manager, Canara Bank,
on application of present petitioner under
Right to Information Act on 12.10.2022
wherein it is stated that Account No.
2154261011432 of M/s Naveen Auto Raje
Babu,
Bulandshahar,
is
lying
with
concerned
branch
of
Canara
Bank,
however, its operation has been blocked on
1.12.2021 as per information received from
Bulandshahar branch. Its operation was suo
moto stopped due to expiry of O.D. time
limit and in addition to this, on document
for renewal of said O.D. limit, one partner
Smt. Shashi Sharma has not signed the
document and had also requested for
blocking of all sort of withdrawal from the
bank due to mutual dispute with other
partner.

15.

Learned
counsel
for
the
respondent submitted that the petitioner had
deliberately drawn a cheque on account
which was blocked. He did not intend to
pay the amount gathered in the cheque
1220 INDIAN LAW REPORTS ALLAHABAD SERIES
which was got dishonoured by the bank.
The petitioner himself took the case that
said cheque was given as security in his
reply to demand notice given by the
respondent after dishonour of said cheque.
All the issues have been addressed by
revisional court while dismissing the
revision petition filed by the present
petitioner and no interference is warranted
in impugned orders passed by learned court
below in present petition under Article 227
of the Constitution of India which is an
extraordinary remedy.

16. Karanataka High Court in
Criminal Petition No. 2726 of 2014, M/S
Go Go International Pvt.Ltd. vs M/S
Lilliput
Kidswear,
considering
the
judgment of Delhi High Court in M/S.
Ceasefire Industries Ltd. vs State & Ors.
(supra) vide order dated 24.1.2019 held that
when cheque is dishonoured for the reason
account blocked, the same constitutes an
offence under Section 138 of the N.I. Act,
therefore there is divergence of opinion on
this issue amongst High Courts.

17. In D.P. Gulati Manager
Accounts M/s. Jetking Infotrain Ltd. vs.
State of Uttar Pradesh & Anr., Hon'ble
Apex Court in judgment dated 31.3.2015 in
Crl. Appeal No. 1550 of 2014 set aside the
order passed by High Court of Judicature at
Allahabad in Crl. Misc. Application u/s 482
Cr.P.C. No. 6667 of 2014 filed under
Sections 420, 467, 468 IPC by accused
persons, whereby the said court disposed
of the petition and declined to quash the
proceedings of Criminal Complaint Case
no. 1446 of 2013 and complaint under
Section 138 of N.I. Act filed by
appellants before Hon'ble Apex Court on
the ground that it was a clear case of
abuse of process of law on the part of
respondent no. 2.

18. Whether the account of which the
said cheque was drawn, was having
sufficient balance to pay the amount
gathered by said cheque worth Rs.
90,000,00/- drawn in favour of respondent,
whether petitioner was having some other
account apart from the account which was
blocked as said above on which cheque
would be drawn in favour of the
respondents in discharge of certain debt
and liability as claimed by her, whether the
petitioner indeed intended to got the cheque
encashed, all these questions are to be
decided during trial and the grounds taken
in present petition can be raised by the
petitioner at the stage of leading defence.
The petitioner has claimed that said cheque
was issued in favour of the respondent no.
2 as security cheque, as huge amount was
outstanding to the respondent no. 2 and for
that reason after completing all formalities
of disassociation from firm the cheque was
to be encashed, is dispelled by the aforesaid
proposition of law laid down by Hon'ble
Apex Court in Om Laboratory Pvt. Ltd.,
wherein it was held that handing over of
cheque by way of security per se, would
not absolve the accused from discharge of
liability arising from said cheque, therefore,
in the light of foregoing discussion, this
Court finds no good ground to interfere in
impugned orders passed by court below
which are under challenged in present
petition. The impugned orders are in
accordance with law and no illegality or
irregularity is found therein. In that view of
the matter, trial court is required to record
evidence of the parties and arrive at an
independent conclusion as to whether an
offence is made out under Section 138 of
N.I. Act or not.

18. In the result the petition stands
dismissed. The summoning order passed
by learned magistrate is affirmed. The trial
5 All. Phool Kumar Vs. Shyam Singh & Ors.
1221
court shall proceed to record the evidence
of parties after appearance of the accused
petitioner and recording therein statements
on charge and decide the questions with
reference to Section 138 of N.I. Act in
accordance with law.

19.

The
interim
order
stands
discharged.
----------
(2023) 5 ILRA 1221
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Matters Under Article 227 No. 11228 of 2022

Phool Kumar ...Petitioner
Versus
Shyam Singh & Ors. ...Respondents

Counsel for the Petitioner:
Sri Aditya Kumar Singh, Sri Nipun Singh

Counsel for the Respondents:
Sri Syed Ali Imam, Sri Syed Ali Imam

A. Civil Law - Injunction - Status quo -
Where any property is held by several coowners, each co-owner has interest in
every part of the property, but such an
interest is qualified by similar interest of
other co-owners, and therefore, to that
extent, no damage or waste to the
property
or
illegitimate
use
of
the
property can be permitted by one of the
co-owner to the disadvantage of other coowners. (Para 28, 29)

Ownership
imports
three
essential
rights,
namely, right to possession, right to enjoy and
right to dispose. If an owner is wrongly deprived
of possession of his property he has a right to
be put in possession thereof. All the three
essentials are satisfied in the case of co-owner
of a land. All co-owners have equal rights and
co-ordinate interest in the property, though
their
shares
may
be
either
fixed
or
indeterminate. Every co-owner has a right to
enjoyment and possession equal to that of the
other co-owner or co-owners. Each co-owner
has, in theory interest in every infinitesimal
portion of the subject matter and each has the
right, irrespective of the quantity of his interest,
to be in possession of every part and parcel of
the property, jointly with others. (Para 30)

Jurisprudentially it is not correct to say that a
co-owner of a property is not its owner. He
owns every part of the composite property
along with others and it cannot be said that he
is only a part- owner or a fractional owner of
the property. The position will change only
when partition takes place. (Para 30)

B. If one co-sharer is being injuncted from
using and enjoying the land which falls in
his share also by virtue of being co-sharer,
such an aggrieved co-sharer can maintain
a suit for injunction. (Para 31)

In the plaint, the general pleading is w.r.t.
undivided shares and the only exception is para9 wherein allegations have been made that
there was a threat by the co-sharers namely the
respondents to change the nature of the land.
(Para 32)

The injunction could not have been maintained
and instead petitioner ought to have either
amended the relief clause in the plaint
demanding for partition or should have filed a
fresh suit for partition. Since the defendants
have taken the plea that they were not raising
any new construction activity and only some
repair work was going on in the old existing
construction where the defendants are residing,
such an act would not amount any destruction
or damage to the joint property, nor would
result in appropriation by the defendants of any
part of land in name of raising construction. In
these circumstances, the judgment passed by
the District Judge does not suffer from any
manifest error of law and facts. (Para 33, 34)

It is left open for the petitioner to either seek
amendment in the suit to add a relief for
partition or to file a fresh suit for partition and
also maintain an application of injunction afresh