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2014 DIGILAW 549 (UTT)

Charandas v. Rakesh Kumar

2014-12-04

ALOK SINGH

body2014
JUDGMENT : Alok Singh, J. Plaintiff / petitioner, herein, has invoked extraordinary / supervisory jurisdiction of this Court under Article 226 / 227 of the Constitution of India assailing the judgment and order dated 23.09.2014 passed by 3rd Additional District Judge, Rudrapur, Udham Singh Nagar whereby Misc. Civil Appeal No. 37 of 2011 filed by defendants / respondents, herein, was allowed and ad interim injunction granted by the trial court was vacated and application moved by plaintiff / petitioner, herein, seeking ad interim injunction during the pendency of OS No. 110 of 2010 was rejected. Brief facts of the present case, inter alia, are that plaintiff / petitioner, herein, has filed Civil Suit being O.S. No. 110 of 2010 against the defendants / respondents, herein, seeking permanent prohibitory injunction restraining the defendants / respondents, herein, in making any interference in the possession of the plaintiff / petitioner, herein, over the land belonging to Khata No. 127 Gata Nos. 345, 346-Kha measuring 1.0120 hectares, village Narayanpur, Tehsil Gadarpur, District Udham Singh Nagar. An application seeking ad interim injunction under Order 39 Rules 1 and 2 CPC was also filed along with the plaint seeking ad interim injunction during the pendency of the civil suit. It is specifically stated in the plaint that plaintiff / petitioner, herein, is bhoomidhar in possession of the suit land and his name and possession is recorded in the revenue record while defendants / respondents, herein, have absolutely no relation with the property, in question, however, they are extending threat to dispossess the plaintiff and to harvest the crop standing on the land, in question. Learned trial court having heard both the parties was pleased to allow the ad interim injunction application moved by the plaintiff / petitioner, herein, vide order 13.07.2011 directing the defendants / respondents, herein, not to make any interference in the possession of the plaintiff / petitioner, herein, over the suit land by any means during the pendency of the suit. Feeling aggrieved, defendants / respondents, herein, preferred an appeal before the District Judge under Order 43 Rule 1 (r) CPC. Appellate Court, having heard both the parties, was pleased to allow the appeal filed by the defendants / respondents, herein, vide impugned judgment and order dated 23.09.2014. Feeling aggrieved, plaintiff / petitioner, herein, has approached this Court by way of present petition. I have heard Mr. B.K. Gupta & Mr. Appellate Court, having heard both the parties, was pleased to allow the appeal filed by the defendants / respondents, herein, vide impugned judgment and order dated 23.09.2014. Feeling aggrieved, plaintiff / petitioner, herein, has approached this Court by way of present petition. I have heard Mr. B.K. Gupta & Mr. Piyush Garg, Advocates for the petitioner & Mr. Vikas Guglani, Advocate for respondents and have carefully perused the record. Undisputedly, civil suit being OS No. 110 of 2010 was preferred by the plaintiff / petitioner, herein, on 05.08.2010 while prior to filing of O.S. No. 110 of 2010, defendants / respondents, herein, has filed suit for declaration under Section 229 B of the U.P. Z. A & L. R. Act before Assistant Collector, 1st Class / SDO, Bajpur stating therein that plaintiffs of revenue suit (defendants / respondents, herein) are, in fact, in actual physical possession over the property, in question and defendant of revenue suit (plaintiff / petitioner, herein) is not in possession over the property, in question, however, name of the defendant of revenue suit (plaintiff / petitioner, herein) is wrongly continuing in the revenue record, therefore, after deleting the name and possession of the defendant of revenue suit (plaintiff / petitioner, herein), name of plaintiffs of revenue suit (defendants / respondents, herein) be recorded in the revenue record. In the declaratory suit filed under Section 229B of the Act. Plaintiff, therein, also preferred an application seeking ad interim injunction under Section 229D of the Act. Undisputedly, learned Assistant Collector, 1st Class / SDO, Bajpur was pleased to issue direction to the parties to maintain status quo vide order dated 26.07.2010 prior to filing of present civil suit. In view of the fact that present respondents had already filed suit for declaration challenging the entries standing in the name of petitioner in the revenue record prior to filing of present civil suit, learned Appellate Court came to the conclusion that there is no prima facie case and balance of convenience in favour of the plaintiff / petitioner, herein, and since status quo order passed by the competent revenue court is still existing, therefore, contrary order of injunction ought not to have been passed by the trial court. It is settled position of law that before issuing ad interim injunction order, learned court has to find out as to whether there is prima facie case and balance of convenience in favour of plaintiff seeking ad interim injunction and if injunction is declined whether plaintiff is going to suffer irreparable loss, which cannot be compensated by any means. Undisputedly, present civil suit seeking perpetual injunction was filed subsequent to the revenue suit filed for declaration. In my considered opinion, in both the suits the sole question involved is as to who is the owner in possession of the suit property, therefore, applying the principle of Section 10 CPC, subsequent, civil suit is liable to be stayed. Although, ad interim injunction application in a subsequent suit despite stay of subsequent suit under Section 10 CPC can be entertained and decided, however, there was already status quo order passed by the competent revenue court, therefore, contrary order ought not to have been passed by the civil court. Consequently, in my opinion, no prima facie case and balance of convenience are in favour of the plaintiff and if two contrary interim orders are passed, parties may suffer irreparable injuries. Plaintiff / petitioner, herein, instead of filing subsequent civil suit ought to have filed written statement, reply to ad interim application and appropriate application seeking ad interim injunction in his favour in the previously instituted suit for declaration. In my considered opinion, application under Order 39 Rule 1 and 2 CPC or under Section 229D of the U.P. Z.A. & L.R. Act can be filed by both the parties against each other. In that event, it is for the court to pass appropriate orders thereon. At this stage, Mr. B.K. Gupta, Advocate for the petitioner, submits that petitioner shall file reply to ad interim injunction application before the revenue court and shall also move appropriate application seeking ad interim injunction against the present respondents, therefore, revenue court should be directed to decide the applications, at their own merit, in accordance with law, without being prejudiced by any finding / observation recorded either by the Appellate Court or by this Court. In view of the observations made hereinbefore, present petition fails and is hereby dismissed. However, it would be open to the petitioner to file objection as well as appropriate application before the competent revenue court hearing the suit for declaration. In view of the observations made hereinbefore, present petition fails and is hereby dismissed. However, it would be open to the petitioner to file objection as well as appropriate application before the competent revenue court hearing the suit for declaration. It goes without saying that in the event of filing objection as well as appropriate ad interim injunction application, same shall be decided by the revenue court, at their own merit, in accordance with law, without being prejudiced from the findings / observations recorded either by the Appellate Court or by this Court.