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2016 DIGILAW 1434 (ALL)

Rafat Ali v. Sayeed Khan

2016-04-19

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri Anand Mohan Lal for the petitioners. 2. This petition has been filed for an order or direction restraining the defendant/respondent from forcibly dispossessing the petitioners from the house in dispute or at least status quo may be directed to be maintained by the parties meanwhile till the disposal of petitioners/plaintiffs' application 6-C for interim injunction under Order 39 Rule 1, C.P.C. 3. The petitioners filed a suit (registered as Civil Suit No.159 of 2016) for permanent injunction restraining the defendant from interfering with their possession over house in dispute and taking forcible possession over it, on 5.3.2016. Along with the plaint the petitioners have also filed an application under Order 39 Rule 1 C.P.C. for grant of interim injunction. The trial court by order dated 5.3.2016 directed for registering the suit and issued summons to the defendant fixing 5.4.2016 for written statement and 16.4.2016 for issues. The application for interim injunction was also heard. The trial court by order dated 5.3.2016 found that plaintiffs had not filed any document to prove their title over the house in dispute. In addition to it a second appeal is pending in respect of house in dispute in this High Court as such it would not be proper to pass ex parte interim order. Notice on the application was issued. 4. The counsel for the petitioners submits that order of trial court dated 5.3.2016 is illegal inasmuch as the trial court has found that the plaintiffs have not filed any document to prove their title over the house in dispute. The finding that second appeal is pending is also irrelevant as in second appeal defendant was not party but a stranger. The defendant was a rank trespasser as such interim order ought to have granted to the petitioners. The finding that second appeal is pending is also irrelevant as in second appeal defendant was not party but a stranger. The defendant was a rank trespasser as such interim order ought to have granted to the petitioners. He relies upon judgment of Supreme Court in Ram Chandra Maurya vs. State of U.P. and others, 2003(2) ARC 281 and Ramesh Chand Ardawatiya vs. Anil Panjwani, 2003 (2) ARC 171 as well as judgment of this Court in Premwati (Smt.) vs. Jagdish Prasad(since dead) by Legal Representatives and others, 2005(1) ARC 153 in which it has been held that the person in possession may not have title to the property yet if he has been inducted into possession by the rightful owner and is in peaceful and a settled possession of such property he is entitled in law to protect the possession until dispossessed by due process of law by a person having a better title than what he has. He submits that the observation of the trial court that the petitioners have not filed any document to prove their title is irrelevant. In the circumstances, ex parte interim order is required to be granted to the petitioners. 5. I have considered the arguments of the counsel for the petitioners. 6. Order 39 Rule 3, CPC requires to issue notice to the defendant in every application for interim injunction unless the court is satisfied that object of granting injunction would be defeated by delay. Although in this case trial court has not recorded a finding in respect of requirement of granting ex parte injunction as given under Order 39 Rule 3, CPC but the suit was filed on 5.3.2016 showing the cause of action for suit on 29.2.2016. Now more than one and a half months have passed and the petitioners are still in possession over the house in dispute. Thus, there is no such urgency to grant ex parte interim injunction. This Court in exercise of supervisory jurisdiction under Article 227 of Constitution does not propose to grant any ex parte interim injunction. 7. So far as injunction application of the petitioners is concerned, it is still pending before the trial. Thus, there is no such urgency to grant ex parte interim injunction. This Court in exercise of supervisory jurisdiction under Article 227 of Constitution does not propose to grant any ex parte interim injunction. 7. So far as injunction application of the petitioners is concerned, it is still pending before the trial. The trial court may pass a suitable order on it on the next date fixed in the suit and the observations made in the order dated 5.3.2016 are not liable to be considered as under Order 39 Rule 1, CPC the satisfaction regarding prima facie case has to be recorded on the basis of affidavits or otherwise. 8. Subject to the aforesaid observation the petition is dismissed.