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2016 DIGILAW 2054 (ALL)

Gulistan Sahkari Awas Samiti Ltd. , Lko. Thru. Secy. v. Addl. Distt. & Session Judge,Ct. No. 9, Lucknow

2016-05-26

DEVENDRA KUMAR UPADHYAYA

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JUDGMENT Devendra Kumar Upadhyaya, J. – Heard Sri Manik Sinha, learned counsel for petitioners and Sri Ram Karan Agarwal, learned counsel who has put in appearance on behalf of respondent nos. 3 and 4. 2.This petition challenges an order dated 19.12.2014 passed by learned Civil Judge (Senior Division), Malihabad, District Lucknow in Regular Suit No.245 of 2013 filed by the petitioners against the defendants-respondent Nos. 3 and 4 whereby the application moved by the petitioners-plaintiffs under Order 39 Rules 1 and 2, CPC has been rejected. The petitioners have also challenged the order passed by the appellate court on 01.03.2016 whereby the appeal preferred by them against the order dated 19.12.2014 passed by the learned trial court has been dismissed. 3. The facts of the case are that a suit for permanent injunction has been filed by the petitioners against the defendants in respect of plot no. 76/1, having an area of 15 biswan, situate at village/ mohalla Barora Husainbari, Lucknow. In the said suit, an application seeking interim injunction under Order 39 Rules 1 and 2, CPC was filed. However, the said application has been rejected by the learned trial court. The learned trial court while rejecting the said application moved by the petitioners has considered the order passed in earlier suit. In respect of property in suit, the father of the defendants had instituted a civil suit wherein application moved by the father of the defendants under Order 39 Rules 1 and 2, CPC was allowed on 21.12.1995 against which the petitioners preferred an appeal under Order43, Rule 1 , CPC, namely, Civil Misc.Appeal No.3 of 1996, which too, has been dismissed. 4. The defendants have also instituted another civil suit for cancellation of alleged sale deed dated 26.06.1992 which is alleged to have been executed by father of the defendant nos.3 and 4 in favour of the petitioners. Both suits are clubbed together and proceedings thereof are going on simultaneously. 5. Admittedly, interim injunction order passed on 21.12.1995 is still intact. In the facts of aforesaid case, any interim order being prayed for by the petitioners may run contrary to the earlier interim injunction order passed on 21.12.1995. Thus, application for grant of interim injunction, in my considered opinion, has rightly been rejected by learned court below while passing the impugned order dated 09.12.2014-. In the facts of aforesaid case, any interim order being prayed for by the petitioners may run contrary to the earlier interim injunction order passed on 21.12.1995. Thus, application for grant of interim injunction, in my considered opinion, has rightly been rejected by learned court below while passing the impugned order dated 09.12.2014-. The appellate court has also affirmed the findings recorded by the learned trial court and I do not find any infirmity in the order passed by the appellate court. The appellate court while affirming the order passed by the learned trial court has also found that the suit by the petitioners was filed concealing the material facts relating to earlier suit and the earlier injunction order passed by the learned trial court on 21.12.1995. 6. For the aforesaid fact, I do not find any illegality or irregularity in the order passed by the court below. The petition is dismissed accordingly. 7. However, it is provided that an appropriate application shall be moved by the petitioners for consolidating all three suits pending between the parties. The application, if moved, the proceedings of all three suits shall be consolidated and carried out simultaneously. It is provided that proceedings of all three suits shall be expedited and concluded as early as possible. Petition dismissed.