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2014 DIGILAW 1329 (ALL)

Anita v. State of U. P.

2014-04-24

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri B. D. Pandey for the petitioner and Sri V.K. Singh and Sri Pramod Kumar Pandey for the contesting respondents. 2. The writ petition has been filed against the order of Board of Revenue dated 28.3.2014 by which, while disposing of the revision filed by the contesting respondents with direction to decide the application under Order 39, Rule 1 of CPC, the parties were directed to maintain status quo till disposal of the application. 3. Rakesh Kumar, respondent -5 filed a suit (registered as Suit No. 159 of 2013) for partition of the land in dispute claiming his ¼ share in it. In the suit an application for interim injunction has also been filed. The summons were issued in the suit and on the service of the summon the petitioner appears before the court below and filed a written statement on 6.2.2013. The petitioner also filed an objection in the application for interim injunction however during pendency of the application, respondent -5 filed another application for interim injunction on 6.3.2013 on which the trial court by order dated 12.3.2013 granted an interim injunction directing the parties to maintain status quo. The petitioner filed an objection to the aforesaid order thereafter the matter was heard by trial court and the trial court by order dated 5.3.2014 found that as the earlier application was pending as such a fresh application was not maintainable. Accordingly, the order dated 12.3.2013 was recalled and 26.3.2014 was fixed for hearing the objection of the petitioner in the application for interim injunction. Respondent -5 challenged the order dated 5.3.2014 in Revision No. 44 of 2013-14 before Board of Revenue and Board of Revenue disposed of the revision with direction to the trial court to decide the application under Order 39 Rule 1 of CPC after hearing the parties and till disposal of the application the parties were directed to maintain status quo. Hence this writ petition has been filed. 4. The counsel for the petitioner submits that Order 39 Rule 3 requires the reasons to be recorded for grant of exparte interim order. Respondent -5 filed an application before the trial court along with the plaint but no interim order was passed on the application filed by the contesting respondent. Therefore during pendency of the earlier application the second application was not maintainable. Respondent -5 filed an application before the trial court along with the plaint but no interim order was passed on the application filed by the contesting respondent. Therefore during pendency of the earlier application the second application was not maintainable. In any case there was no urgency and the trial court was satisfied, accordingly, the order dated 12.3.2013 granting the exparte interim injunction was recalled and the petitioner was granted time for filing objection in application for interim injunction. Board of Revenue without summoning the record and without issuing the notices, has granted the interim injunction. The order of the Board of Revenue, so far as it is directed to the parties to maintain status quo, amounts to exparte injunction and is liable to be set aside. 5. I have considered the arguments of the counsels for the parties and examined the records. Order 39 Rule 3 of CPC requires the court to record the reasons for granting exparte injunction. Thus there is no absolute prohibition for grant of exparte injunction. However, the court is required to record reason for grant of the exparte injunction. The Board of Revenue has not recorded any reason for grant of exparte injunction. A perusal of the record shows that suit has been filed for partition between the co-sharers. In the applications for interim injunction it has been stated that the defendants were negotiating to sell the property in dispute and were going to construct brick-laid passage over it thus they were going to change the nature of the land in dispute. Thus there was an urgency in the matter as the nature of the property in the suit is required to be maintained. As the suit was for partition and it will create difficulty in passing the final decree and adjusting the share of the parties, in case any construction was raised and there was also allegation that the defendants were negotiating to sell the property in dispute. Thus the urgency was there but the Board of Revenue has not recorded the reason for granting exparte injunction. 6. In the facts of the case this Court has declined to interfere in the order of Board of Revenue. However the trial court is directed to dispose of the interim injunction application on the next date fixed in the suit. Thus the urgency was there but the Board of Revenue has not recorded the reason for granting exparte injunction. 6. In the facts of the case this Court has declined to interfere in the order of Board of Revenue. However the trial court is directed to dispose of the interim injunction application on the next date fixed in the suit. The parties undertake that they will appear and co-operate in the hearing of the interim injunction application. It appears that the property in dispute is an urban property and all the parties are in urgent need for raising construction for residence, it is appropriate that the trial court may decide the suit itself within a period of six months from the date of producing a certified copy of this order. 7. With the aforesaid observations, the writ petition is disposed of.