Allahabad High Court
Smt. Amrawati vs Smt. Saraswati Devi & 2 Others on 26 August, 2014
Bench: Abhinava Upadhya
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 26
Case :- WRIT - C No. - 44680 of 2014
Petitioner :- Smt. Amrawati
Respondent :- Smt. Saraswati Devi & 2 Others
Counsel for Petitioner :- Ashutosh Pandey,Hemant Kumar
Hon'ble Abhinava Upadhya,J.
The petitioner had filed a suit for cancellation of sale deed dated 26.9.2011 and for permanent injunction being Suit No. 34 of 2012. In the said suit the petitioner also applied for interim injunction which was rejected by order dated 23.3.2012. The petitioner then filed an appeal being Misc. Appeal No. 10 of 2012. In the said appeal an objection was filed by the defendants relying on Rule 28 of the General Rule (Civil) that in the memo of appeal in certain paragraphs, certain citation and other rulings of the High Court have been mentioned, which cannot be done. Pursuant to the aforesaid Rule 28 the appellate court directed the petitioner to file an amendment deleting those paragraphs in view of Rule 28 of General Rule (Civil) Volume (1) by order dated 7.8.2014 and fixed 21.8.2014 for further orders.
Learned counsel for the petitioner has relied upon a decision of this Court in the case of Sudershan Chopra Vs. New Okhla Industrial Development Authority reported in 2000 (2) AWC 983 whereby this Court while considering Rule 28 of General Rules (Civil) has held that the said provision applies only to applications and is not applicable to appeals as the grounds of appeal are essentially argumentative. Paragraph-9 of the aforesaid decision is quoted herein below:
"9. Thus, the meanings and scope of expression 'application' and 'appeal' are totally different from each other. Rule 28 referred to above applies only to the applications and not to memorandums of appeals. A memo of appeal inevitably contains argumentative matters. The grounds of appeal are nothing but arguments against the order of appeal. In the grounds of appeal, not only arguments, but some time the material in support of the arguments is stated by the appellant including the case law on the point in question. If the submission made by learned counsel for the petitioner is accepted, then in almost all appeals, the respondents Instead of contesting the appeals on merits may apply for returning the memorandums of appeals to the appellants which would frustrate and make unworkable of all statutory provisions in various statutes providing for appeals against the orders or decree of inferior courts, authorities or tribunals to superior courts, authorities and tribunals."
I have considered the submissions of the learned counsel for the petitioner and have perused the record.
The matter requires consideration.
Issue notice to the respondents returnable at an early date.
Learned counsel for the petitioner will take steps for service of notice upon the respondents within a week.
List after service of notice.
Till the next date of listing, the operation of the impugned order dated 7.8.2014 (Annexure-6 to the writ petition) shall remain stayed.
Order Date :- 26.8.2014/SKM
