OM PRAKASH v. ADDL COMMISSIONER ADMN FAIZABAD DIVISION FAIZABAD
2008-02-19
PRAKASH KRISHNA
body2008
DigiLaw.ai
PRAKASH KRISHNA, J. Heard learned Counsel for the parties and pe rused the record. 2. The counter affidavit filed on be half of the respondents is taken on record. 3. With the consent of the parties, this writ petition is disposed of finally at the admission stage. 4. The dispute relates to the property left by one Sri Bindra Prasad son of Nihal, resident of village Jalalpur, h/o Badail, pargana and tehsil Nawabganj, District Barabanki who was a recorded tenure holder of the land comprised in plot No. 453-A. The contesting respondent No. 3 applied for mutation of his name after death of Sri Bindra Prasad in his place, on the basis of a Will allegedly executed by Sri Bindra Prasad in his favour. The petitioners contested the mutation proceedings and they set out a case that Bindra Prasad had executed a registered Will in their favour. The contention of petitioners was accepted by the revenue authorities and conse quently the names of petitioners were mu tated in the revenue records. In the mean time, the respondent No. 3, Ram Naresh Instituted a case No. 103 under section 229-B of U. P. Z. A. and L. R. Act for declaration of his title in respect of the property in question on the basis of the Will executed in his favour. The said case is still pending before the Sub-Divisional Magistrate, Nawabganj, District Barabanki (hereinafter referred to as s. D. M. ). An application for injunction was filed before the S. D. M. by Ram Naresh, respondent No. 3. The said application was dismissed by the order dated 30. 8. 2003. It was found that the names of petitioners have been ordered to be mutated by the Tehsildar on 9th July, 2001 and the said order has been confirmed in revision and upto High Court stage. The proceedings remained pending and an other attempt was made to obtain ad in terim order from the S. D. M. Court in the said suit. An application to this effect was filed on 21. 9. 2005. On the said application the S. D. M. passed order to the effect that till further orders the parties are directed to maintain status quo.
An application to this effect was filed on 21. 9. 2005. On the said application the S. D. M. passed order to the effect that till further orders the parties are directed to maintain status quo. On objection being raised by the petitioners, the said order was recalled on 17th November, 2005 vide Annexure No. 6 to the writ petition and 22nd December, 2005 was the date fixed for framing of issues. Subsequently, the respondent No. 3 approached this Court in writ petition wherein it was directed that an application filed by the respondent No. 3 may be considered by the S. D. M. This time the S. D. M. on 7th May, 2007 passed ad interim injunction order, impugned in the present writ petition, on the ground that the petitioners have sold away the part of the disputed land. This order was unsuc cessfully challenged in revision before the Addl. Commissioner, hence, the present writ petition. 5. Learned Counsel for the respon dents submits that this Court should not interfere in the present writ petition as the present writ petition is directed against an interlocutory order. Refuting the aforesaid contention, learned Counsel for the petitioners submits that the impugned order has been passed without taking into con sideration the legal principles for grant of interim injunction order and, therefore, the order is liable to be quashed. 6. Considered the respective sub missions of the learned Counsel for the parties and perused the record. 7. It is not in dispute that on earlier occasion twice the injunction application filed by the respondent No. 3 was dis missed. It was found that the names of pe titioners are recorded in the revenue rec ords and the said order has attained the finality. 8. Learned Counsel for the respon dents invited attention of this Court to wards section 229-D of the U. P. Z. A. and L. R. Act which confers power on Revenue Court to pass injunction order in appro priate cases. No doubt, power has been conferred under section 229-D on revenue authorities to pass injunction orders in ap propriate cases. But grant of an interim re lief is not a matter of course.
No doubt, power has been conferred under section 229-D on revenue authorities to pass injunction orders in ap propriate cases. But grant of an interim re lief is not a matter of course. It is acknowl edged legal position that before granting an injunction order the Court is required to record a finding on the following three questions: (i) Prima facie case (ii) Balance of convenience and (iii) Irreparable loss; in favour of the applicant who is seeking ad interim injunction order. 9. The honble Apex Court in its decision reported in Industrial Credit & In vestment Corporation of India Ltd. v. Grapco Industries Ltd. and others 1999 (36) ALR 592 (SC) has observed that "an ex-parte order is only of a short dura tion and it is granted to safeguard the in terest of the applicant, but, at the same time such an order cannot be granted as a matter of course. A Court or Tribunal has also to consider the consequences of such an order if ultimately the order is to be revoked after hearing the defendant. In such circum stances, the Tribunal must put the applicant on terms while granting an ex parte order and compensate the defendant in case the ex parte order was obtained with out any justification and harm has been caused to the defendant. An ex-parte order can also affect the reputation of the person against whom it is issued and sometimes it may be difficult to undo the damage caused by an interim order. A Tribunal while granting an ex parte order of stay or injunction must record reasons, may be brief ones, and cannot pass a stereotyped order in terms of the prayer made. Thus an ex parte order cannot be allowed to con tinue indefinitely and the continuance of an interim order has to be decided without undue delay when the defendant puts in his appearance. It is not necessary to hear long drawn arguments. 10. The principles on which interim order can be granted, are well settled. Fur ther, the Honlble Supreme Court in the case of Morgan Stanley Mutual Fund v. Kartick Das, 1994 (4) SCC 225 has held that "an ex parte order could be granted only under exceptional circumstances. Grant of an ex parte order is not a rule but an exception.
The principles on which interim order can be granted, are well settled. Fur ther, the Honlble Supreme Court in the case of Morgan Stanley Mutual Fund v. Kartick Das, 1994 (4) SCC 225 has held that "an ex parte order could be granted only under exceptional circumstances. Grant of an ex parte order is not a rule but an exception. The factors which should weigh with the Court in the grant of ex parte injunction are (a) Whether irreparable or serious mischief will ensue to the plaintiff; (b) Whether the refusal of ex parte injunction would involve greater in justice than the grant of it would involve; (c) the Court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is pre vented; (d) the Court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grani, ex parte injunction; (e) the Court would expect a party applying for ex parte in-1 junction to show utmost good faith in making the application; (f) even if granted, the ex parte injunction would be for a limited period of time; and (g) general princi ples like prima facie case, balance of convenience and irreparable loss would also be considered by the Court. " 11. In the case in hand, the S. D. M. has not recorded any finding on the above in gredients. He was swayed away by the consideration that since a part of holding has been transferred by the present petitioners, a case for grant of ad interim injunction order has been made out. However, it has not recorded a finding that the respondent No. 3 has got a prima-facie case. 12. It is not in dispute that there is a registered Will in favour of the petitioners executed by Sri Bindra Prasad. The petition ers are the daughters sons of Sri Bindra Prasad while respondent No. 3 is not a fam ily member or relative of Sri Bindra Prasad. He is a stranger. The second relevant fact is that in the proceedings under U. P. Land Revenue Act prima-facie Will executed by Bindra Prasad in favour of the petitioners, has been found to be valid.
He is a stranger. The second relevant fact is that in the proceedings under U. P. Land Revenue Act prima-facie Will executed by Bindra Prasad in favour of the petitioners, has been found to be valid. The third rele vant consideration is that the petitioners are relatives of the deceased tenure holder while respondent No. 3 is totally stranger. The Court below has also not taken into consideration the fact that on earlier two occasions it has dismissed the injunction application filed by the respondent No. 3. Unless for bidden by law, every owner of a property has right to transfer the property. 13. Taking into consideration the above facts, the impugned order dated 7th May, 2007 passed by the S. D. M. Nawab-ganj, District Barabanki (Annexure No. 12 to the writ petition) cannot be sustained. The same is hereby quashed. Consequently, the order passed by the Revisional Court dated 18. 9. 2007 (Annexure No. 15 to the writ petition) is also quashed. The writ pe tition succeeds and is allowed. However, the S. D. M. shall make an endeavour to de cide the suit expeditiously, preferably within one year from the date of produc tion of certified copy of this order. 14. It is made clear that the observa tions made above, will have no bearing on the merits of the case. Petition Allowed. .