Research › Search › Judgment

Allahabad High Court · body

2013 DIGILAW 3098 (ALL)

Kul Bhushan v. A. D. J.

2013-12-18

ABHINAVA UPADHYA

body2013
JUDGMENT Abhinava Upadhya, J. By means of this writ petition, the petitioner has come up to this Court with the prayer for quashing the order dated 2.9.2003 and 17.4.2003 passed under O.39 R.1 and 2 CPC and O.43 R.1r CPC respectively and further with the prayer to direct the respondents not to dispossess the petitioner from plots No.43, 44, 45 and 46 situate in Industrial Estate, Deoband, district Saharanpur. 2. The grievance of the petitioner is that he had filed a suit for prohibitory injunction being suit No.268 of 1995 with the prayer that the respondents defendants be restrained from interfering in the possession of the petitioner over the plots No. 43 to 46 as mentioned above. Putting of such a claim is on account of the fact that the defendant had executed a lease deed of 99 years in favour of the petitioner and upon such lease the petitioner came into possession over the property in question and made construction which are still standing on the plot in question. Along with plaint, the petitioner also filed an application under O.39 R.1 and 2 CPC. Initially the interim order was granted for the parties to maintain status quo but the same was not extended due to lawyer's abstaining from work and ultimately the interim injunction application was rejected on 15.3.1999 against which the petitioner then filed an appeal under o.43 R.1r CPC which was also dismissed by the order dated 2.9.2003. 3. Learned counsel for the petitioner submits that after filing of the plaint he has also filed his replica in which he has categorically stated that the lease deed was executed in favour of the plaintiff petitioner over the plot in question and said lease deed was also registered . According to the learned counsel for the petitioner this aspect has not been looked into either by the trial court or the appellate court while deciding the interim injunction application. 4. Learned counsel for the petitioner further submits that initially the lease deed was misplaced but now the same is in possession of the petitioner which is duly registered and establishes his right. From the perusal of the plaint it does not appear that the petitioner has anywhere mentioned about the existence of the lease deed. 4. Learned counsel for the petitioner further submits that initially the lease deed was misplaced but now the same is in possession of the petitioner which is duly registered and establishes his right. From the perusal of the plaint it does not appear that the petitioner has anywhere mentioned about the existence of the lease deed. Throughout the proceedings in the court below the petitioner has been claiming his right on the basis of possession over the property in question. There is no mention with regard to the lease deed except in the replica . The said registered lease deed is not on record. Under the circumstances, the petitioner could not demonstrate his prima facie right over the property in question and interim injunction application and appeal have rightly been rejected. So far as the registered lease deed dated 15.1.1979 is concerned, the same has been registered on 15.1.1979 and has been filed as Annexure-SA-1 to the supplementary affidavit. For the same to be a part of the record of the suit, the petitioner may file an amendment application in the said suit which can be gone into by the court below in accordance with law. As of today, the said suit stands dismissed in default against which a recall application under O.9 R.13 CPC has been filed and notices have been issued but the suit till date has not been restored. As on today, there is no proceedings pending and, therefore, this writ petition cannot be maintained. The petitioner may file an application for recall of the order of the suit or file an amendment application in the suit as may be advised. 5. The writ petition has no merit and is accordingly dismissed.