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2013 DIGILAW 2473 (ALL)

Preetam Singh v. Har Gulal

2013-09-30

SANJAY MISRA

body2013
JUDGMENT Sanjay Misra, J. The Stamp Reporter has reported laches by 141 days in bringing this writ petition. 2. Heard Sri Dinesh Kumar, learned counsel for the petitioner, who claims to be defendant in Suit No.231 of 2012 (Hargu Lal Vs. Dungar Singh & others) and is aggrieved by the orders dated 29.11.2012 passed by the Civil Judge (Jr. Division) Chhata, Mathura, whereby he has granted an ex-parte temporary injunction to the plaintiff-respondent as also the appellate order dated 05.02.2013 passed by the District Judge, Mathura in Misc. Appeal No.10 of 2013 (Preetam Singh Vs. Hargu Lal & others) wherein he has rejected the appeal of the petitioner and directed the Trial Court to decide the application filed by the defendant-petitioner under Order 39 Rule 4 CPC for vacation of the ex-parte injunction order. Learned counsel for the petitioner has made submission on the merits of his case by stating that the ex-parte injunction could not have been granted in view of the documents, sale deeds filed before the Trial Court and therefore his appeal has been wrongly rejected. 3. Having considered the submission of learned counsel for the petitioner and perused the record, it appears that an ex-pare injunction order was granted by the Trial Court on 29.11.2012 to the plaintiff-respondent to which the petitioner has admittedly filed his application under Order 39 Rule 4 CPC to vacate the same. Such application has been filed as annexure alongwith the supplementary affidavit filed today. The Appellate Court has found that the grievance of the petitioner is to be considered on perusal of the evidence filed by the plaintiff-respondent in support of his application which the petitioner has disputed. 4. The Appellate Court has therefore directed that his application under Order 39 Rule 4 CPC should be considered by the Trial Court which should take into account the objections of the petitioner against the ex-parte interim injunction. Insofar as the findings recorded by the Appellate Court is concerned, no error can be found therein since admittedly the petitioner is availing his remedy for vacation of the interim injunction order before the Trial Court by moving his application under Order 39 Rule 4 CPC. Insofar as the findings recorded by the Appellate Court is concerned, no error can be found therein since admittedly the petitioner is availing his remedy for vacation of the interim injunction order before the Trial Court by moving his application under Order 39 Rule 4 CPC. Insofar as the order passed by the Trial Court is concerned, it appears that the Trial Court has gone into four sale deeds filed by the plaintiff-respondents and prima-facie found that the plaintiff-respondent appears to have half share in the property in question. This finding of the Trial Court is being disputed by the petitioner on the basis of very same four sale deeds. In view of the aforesaid submission that the petitioner's application under Order 39 Rule 4 CPC is pending before the Trial Court, it is the Trial Court which has to consider the matter and pass orders after hearing the parties in accordance with law. It is informed that 26.09.2013 was date fixed in the Trial Court and now another date has been fixed. 5. In view of the fact that the petitioner-defendant has already put in appearance and has filed his objection to grant of temporary injunction before the Trial Court, the Trial Court should decide the said application in accordance with law without granting any further unnecessary adjournments to any of the parties on the next date. 6. It is made clear that this Court has not expressed its opinion on the merit of the claim made by the petitioner and that has to be done by the Trial Court. 7. The writ petition is disposed of. 8. No order is passed as to costs.