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2008 DIGILAW 2331 (ALL)

SAJID HASAN v. S. M. AHMAD HASAN

2008-11-25

TARUN AGARWALA

body2008
JUDGMENT Hon’ble Tarun Agarwala, J.—Heard Sri M.A. Qadeer, the learned senior counsel duly assisted by Mohd. Waris, the learned counsel for the petitioners and Sri Ravi Kiran Jain, the learned senior counsel duly assisted by Sri A.K. Srivastava, the learned counsel for the Plaintiffs-Respondents. 2. It transpires that issues Nos. 5 and 6 were framed by the trial Court after the exchange of pleadings. These issues related with regard to the jurisdiction of the trial Court and, whether the suit was maintainable or not. The defendants filed an application 158 Ga, purported to be under Order 7 Rule 11 of the C.P.C, wherein the defendants prayed that since no cause of action arose, the plaint should be rejected. The trial Court, by an order dated 21.5.2008, directed that the said application under Order 7 Rule 11 of the C.P.C. would be decided along with the issues Nos. 5 and 6 and fixed 7.7.2008 for its disposal. The defendants, being aggrieved by this order, filed a civil revision No.76 of 2008 which was dismissed as not maintainable, by an order dated 10.9.2008. 3. The plaintiffs were also aggrieved by the order of the trial Court dated 21.5.2008 and filed writ petition No. 779 of 2008, S.M. Ahmad Hasan and others v. Sri Sajid Hasan and others praying for the quashing of the order of the trial Court dated 21.5.2008 and, further prayed that the defendants may not dispossess the plaintiffs. The Writ Court, by an order dated 21.9.08, disposed of the writ petition, directing the trial Court to decide the injunction application of the plaintiffs on or before 22.10.08 and, further directed the parties to maintain status quo, as existing as on date till 22.10.08. Apparently, this order was passed ex parte against the contesting defendants and the writ petition was disposed of at the initial stage itself without issuing notice to the defendants. 4. Armed with this order of the Court, it transpires that the plaintiffs pressed his injunction application. On the other hand, the defendants contended that they were pressing for the disposal of their application under Order 7 Rule 11 of the C.P.C. and for the disposal of the issues Nos. 5 and 6. However, the trial Court did not decide those issues and, by an order dated 20.10.2008, decided the injunction application and granted an interim injunction in favour of the plaintiffs. 5 and 6. However, the trial Court did not decide those issues and, by an order dated 20.10.2008, decided the injunction application and granted an interim injunction in favour of the plaintiffs. The trial Court, by the said order, also fixed 6.11.2008 for the disposal of the application 158 Ga and issues Nos. 5 and 6. 5. The petitioners, who were defendants in the suit, have preferred the present writ petition for the quashing of the order dated 10.9.08 passed by the revisional Court as well as the order dated 21.5.2008 passed by the Civil Judge passed on the application of the defendants in 158 Ga filed under Order 7 Rule 11 of the C.P.C. The petitioners have also prayed for a writ of mandamus commanding the trial Court to decide the application 158 Ga on the next date fixed and also prayed that the injunction order dated 22.10.2008 passed by the trial Court, be declared void, illegal and unenforceable in the eyes of law. 6. A preliminary objection was raised by the learned senior counsel for the plaintiffs/opposite parties to the effect that against the grant of an injunction, the petitioners have an efficacious statutory remedy available to file an appeal under Order 43 Rule 1(r) of the C.P.C and that the writ petition under Article 227 of the Constitution of India, was clearly not maintainable. On the other hand, the learned counsel for the petitioners submitted that the trial Court should not have considered the injunction application and should have decided the preliminary issues Nos. 5 and 6 as well as the application under Order 7 Rule 11 of the C.P.C. when the trial Court itself had fixed a date and that no injunction was granted since the year 2003 when the suit had been filed and therefore there was no urgency in the matter. Further, the plaintiffs had also challenged the order dated 21.5.2008 in the writ petition which has not been set aside and that the trial Court was swayed unnecessarily by the direction of the Court dated 20.8.2008. 7. Further, the plaintiffs had also challenged the order dated 21.5.2008 in the writ petition which has not been set aside and that the trial Court was swayed unnecessarily by the direction of the Court dated 20.8.2008. 7. Without going into the controversy raised by the defendants-petitioners and without commenting on the directions issued by the Court dated 20.8.2008, this Court finds it appropriate to dispose of the present writ petition with the following directions : (1) Since the trial Court, by orders dated 21.5.2008 and 22.10.2008 had itself directed to dispose of the issue Nos. 5 and 6 as well as an application under Order 7 Rule 11 of the C.P.C. on the date fixed which has not being disposed of so far, consequently, I direct the trial Court to decide the issues Nos. 5 and 6 as well as the application under Order 7 Rule 11 of the C.P.C. in accordance with the provisions of Order 14 Rule 2 of the C.P.C. within six weeks from the date of the production of a certified copy of this order. It is made clear that the parties will not seek undue adjournment on this issue. (2) In so far as the relief (c) claimed by the petitioners is concerned, this Court is not inclined to interfere in the order of the trial Court at this stage, and it would be open to the petitioner to challenge the injunction order dated 22.10.2008 by filing an appropriate Misc. Appeal under Order 43 Rule 1(r) of the C.P.C. 8. The writ petition is disposed of with the aforesaid directions. 9. A certified copy of this order shall be made available to the learned counsel for the parties on the payment of the usual charges within a week. ————