Research › Search › Judgment

Allahabad High Court · body

2012 DIGILAW 558 (ALL)

Marghoob Alam and another v. Illahi Enterprises, Leather Complex and others

2012-03-01

ANIL KUMAR

body2012
Anil Kumar, J.;- Heard Sri Deepak Seth, Sri Hemant Kumar Misrha and Sri Ratnesh Chandra, learned counsel for petitioners and Sri Anurag Srivastava, Sri Madhav Chaturvedi and Sri Nripendra Mishra, Advocate holding brief of Sri Manish Kumar, learned counsel for official respondents. Facts in brief as submitted by the learned counsel for the parties are that initially the plaintiff(respondent in the present writ petition) filed a suit for permanent injunction, registered as Regular Suit No. 152 of 2009 (Ilahi Enterprises Vs. Modelage Pet Products (Pvt.) Ltd.) in the Court of Civil Judge (Sr. Div.), Unnao/O.P. No. 4. In the said suit, an application under Order 39 Rule 1 and 2, CPC has been moved to which the objection was invited and filed by the defendants who are the petitioners in the present writ petition. After hearing learned counsel for the parties, the trial court/Civil Judge (Sr. Div.), Unnao by an order dated 19.09.2009 (Anneuxre No. 5) granted a temporary injunction under Order 39 Rule 1 and 2, CPC in favour of the plaintiffs. Aggrieved by the said order, the defendant filed an appeal (Appeal No. 42 of 2009) before the appellate authority under Order 43 Rule 1(r) C.P.C. but no relief has been granted in their favour, the matter has been fixed for hearing. Thereafter, the petitioner-defendant approached this Court by filing Writ Petition No. 5650 (MS) of 2009, dismissed by order dated 15.10.2009, relevant portion quoted as under:- "Upon perusal of the order passed by the Trial Court, I find that the trial Court has discussed well the factors for issuing the temporary injunction. In the light of the facts of the case and being satisfied with the same he has issued interim injunction, which is under consideration in appeal. Upon perusal of the finding of the trial Court, I find that the defendant has failed to produce any lease deed in which he has been granted permission to install his unit. Therefore, at this stage, I do not feel it appropriate to pass any order. The Court below shall proceed with the application without being influenced with the observation of this court and decide the case on merit. The writ petition is dismissed." On 09.10.2009, plaintiffs moved an application under Order 39 Rule 2A, CPC (Annexure No. 7), accordingly, the Misc. Case No. 155 of 2009 has been registered before the Civil Judge (Sr. Div.), Unnao. The writ petition is dismissed." On 09.10.2009, plaintiffs moved an application under Order 39 Rule 2A, CPC (Annexure No. 7), accordingly, the Misc. Case No. 155 of 2009 has been registered before the Civil Judge (Sr. Div.), Unnao. Thereafter, M/s Ilahi Enterprises through its Proprietor approached this Court for redressal of its grievances by filing Writ Petition No. 5913 of 2009, disposed of by order dated 30.10.2009 with the following direction:- "Learned counsel for the petitioner submits that despite the order passed by the court the opposite parties 1 and 2 had tried to disturb the petitioner's possession which is liable to be restored under the police protection, therefore, he sought direction. However, upon perusal of the order impugned, I do not find error in the same as the petitioner has been given liberty to move an appropriate application under Order 39 CPC, therefore, I hereby provide that if any such application is moved, the same shall be considered by the court below and if any such disobedience is found the opposite parties can be liable for that. Further the petitioner's shall also be entitled for restoration of his possession. With the aforesaid observations and directions, without interfering with the order impugned, I hereby dispose of the writ petition finally." Plaintiffs again approached this Court by filing Writ Petition No. 7009 (MS) of 2010, on 29.11.2010, an order was passed, relevant portion quoted as under:- "Now a direction is issued to the court below to dispose of the petitioner's application moved under Order 39 Rule 2-A C.P.C after providing opportunity of hearing to the parties concerned within three months after receipt of a certified copy of this order. It is further provided that no necessary adjournments shall be given to either of the parties without any cogent reasons." Thereafter the defendants/petitioners moved an application No. 16978 of 2011 in the Writ Petition No. 7009 of 2009, rejected by order dated 18.02.2011, relevant portion quoted as under:- "Learned counsel for the applicant Mr. It is further provided that no necessary adjournments shall be given to either of the parties without any cogent reasons." Thereafter the defendants/petitioners moved an application No. 16978 of 2011 in the Writ Petition No. 7009 of 2009, rejected by order dated 18.02.2011, relevant portion quoted as under:- "Learned counsel for the applicant Mr. Hemant Kumar Mishra submits that the order passed by the Civil Court is an ex parte order and the same is on record, whereas I am of the view that considering the jurisdictional point of the Civil Court upon the application moved under Section 151C.P.C. as well as the application moved under Order 39 Rule 2-A, this Court has issued direction to dispose of the application moved under Order 39 Rule 2-A after providing opportunity of hearing to the parties concerned. Applicant is always at liberty to contest the matter before the Civil Court. Application has no force, therefore, it is rejected." Further, in the matter in question, another Writ Petition No. 5210 of 2011 has been filed before this Court, disposed of by order dated 30.08.2011, relevant portion quoted as under:- "This action is on the verge of contempt. The Court takes a strong view of the matter but instead of recording any finding at this moment, the writ petition is finally disposed of with a direction to the opposite party No.1 to take appropriate action and decide the matter expeditiously. Since the three months' time given by the High Court have already elapsed hence the opposite party No.1 is directed to comply with the orders in letter and spirit and pass appropriate orders within a maximum period of one month from the date a certified copy is placed before him. With these observations the petition stands finally disposed of." In the meantime, the trial court on an application moved by the plaintiffs-defendant under Order 39 Rule 2A (Misc. Case No. 155 of 2009) passed an order dated 21.02.2011, for executing the same, the plaintiffs moved an execution case No. 4 of 2011 in which the plaintiffs-petitioner filed an objection under Order 47 CPC as well as under Order 21 Rule 29. Application moved by the plaintiff under Order 47 CPC has been rejected by order dated 14.09.2011 (Anneuxre No. 2). Aggrieved by the same they preferred a revision (Civil Revision No. Nil of 2011 (Marbool Alam Vs. Application moved by the plaintiff under Order 47 CPC has been rejected by order dated 14.09.2011 (Anneuxre No. 2). Aggrieved by the same they preferred a revision (Civil Revision No. Nil of 2011 (Marbool Alam Vs. Ilahi Enterprises), dismissed by an order dated 21.09.2011 (Anneuxre No. 1). Moreover, the application moved by the defendant-petitioner under Order 21 Rule 29 C.P.C. also rejected by order dated 20.09.2011. The abovesaid facts leads to filing of the present writ petition. After arguing at some length in the present writ petition, learned counsel for parties have agreed amicably that the trial court/Civil Judge (Sr. Div.), Unnao may be directed to decide the suit for permanent injunction within a time frame fixed by this Court on priority basis and the injunction order dated 19.9.2009 (Annexure No.5) passed by the trial court under Order 39 Rule 1 and 2 C.P.C. shall be maintained by the parties till the disposal of the suit, subject to the modification or any order passed by the appellate authority under Order 43 Rule 1 CPC or Higher Forum or till the disposal of the suit for permanent injunction whichever is earlier. In view of the abovesaid facts, without entering into the factual controversy involved in the present case, as learned counsel for parties have agreed in the matter in question, the present writ petition is disposed in the following terms:- (a) The trial court/Civil Judge (Sr. Div.), Unnao shall decide the suit for permanent injunction (Regular Suit NO. 152 of 2009) on or before 31.05.2012 positively and for the said purpose, he is free to fix the date as per his own Board/cause list and further the trial court shall not grant unnecessary adjournment in the matter in question to the parties. (b) The parties are directed to maintain status in respect to the property in dispute as per order dated 19.09.2009 passed by the trial court/Civil Judge (Sr. Div.), Unnao on an application moved by plaintiff under Order 39 Rule 1 and 2 CPC subject to any variance/modification made in this regard by the appellate authority in the appeal under Order 43 Rule 1(r) C.P.C. or by the Higher forum. With the above observations, the writ petition is disposed of.