Allahabad High Court
Dinkar Rai vs Hardev Singh 8 Others on 23 October, 2018
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 7653 of 2018
Petitioner :- Dinkar Rai
Respondent :- Hardev Singh 8 Others
Counsel for Petitioner :- Shambhavi Nandan,Shambhavi Nandan
Hon'ble Mrs. Sunita Agarwal,J.
Sri Ramesh Chand Tiwari learned counsel has filed his Vakalatnama on behalf of respondent no.2.
Heard learned counsel for the parties and perused the record.
The present petition is directed against the order dated 13.07.2018 passed by the lower Appellate Court i.e. the Court of Additional District Judge Court no.5, Jaunpur in Civil Appeal No.7 of 2016 (Vidya Devi & others Vs. Shiv Kumar & others). By means of the order impugned the application 56-Ga filed by the appellant under Section 151 of Code of Civil Procedure has been rejected on the ground that the claim of the petitioner for restoration of position as on the date of the passing of the temporary injunction order i.e. 01.03.2016 cannot be adjudicated by invoking inherent power under Section 151 CPC. In the event of allegations of violation of the interim injunction order, it would be appropriate for the appellant to move an application under Order 39 Rule 2-A making specific allegations therein.
The submission is that under Section 151 CPC, the Civil Court has inherent power to restore back the position of the suit property as on the date of filing of the suit. Any order which would meet the ends of justice or prevent abuse of the process of the court can be passed by the civil court by invoking its inherent power under Section 151 CPC. There is no question of relegating the petitioner/applicant to move application under Order 39 Rule 2-A. Further, it is contended that the observations made in the order impugned by the lower court that no proof of violation of the interim injunction order dated 01.03.2016 was filed by the appellant with the application 56-Ga would run against the appellant, in as much as, the said observation may go against him in case of moving of application under Order 39 Rule 2-A afresh.
Learned counsel for the respondent, on the other hand, submits that the suit filed by the petitioner has been dismissed with the observations that he has no right to the property. The order of status quo dated 01.03.2016 passed by the first appellate court would not confer any right in the suit property in favour of the plaintiff. It is contended by the learned counsel for the respondent that an application for revocation/vacation of the temporary injunction order dated 01.03.2016 has already been filed by the respondent which is pending consideration.
There is no dispute that the temporary injunction order dated 01.03.2016 passed by the first appellate court is operative as on date.
As the allegations are of violation of the interim injunction order passed by the first appellate court on 01.03.2016, it would be appropriate that the petitioner/appellant may file an application under Order 39 Rule 2-A making out a case of violation thereof. While moving such application, it is also open for the appellant to seek restoration of the suit property in the same position as on the date of passing of the temporary injunction order dated 01.03.2016 by invoking power of the civil court under Section 151 CPC.
No infirmity is found in the order of rejection of the application 56-Ga. Unless and untill, the first appellate court reaches at a conclusion on the proper application moved by the appellant that a case of violation of the injunction order dated 01.03.2016 has been made out by the appellant, it is not possible for it to direct to restore back the position of the suit property.
For the aforesaid, while granting liberty to the petitioner/appellant to move a fresh application under Order 39 Rule 2-A read with Section 151 CPC for the prayer made herein, the present petition is being disposed of with the direction that any observations made by the first appellate court while passing the order dated 13.07.2018 on the merits of the application 56-Ga would not come in the way of the petitioner/appellant in disposal of the fresh application, if any moved under Order 39 Rule 2-A read with Section 151 CPC.
At the last juncture, learned counsel for the petitioner/appellant submits that the appellant would be moving an appropriate application within a period of three weeks from today.
In case of filing of such an application, opportunity be granted to the respondent and endeavour shall be made by the court below to decide the same expeditiously, preferably within a period of two months from the date of filing of the same.
It is also made clear that any observations made by this Court herein above would not come in the way of the parties in establishment of their right before the Civil Court. The court below would be under obligation to pass order independently without being influenced by any of the observations made herein above.
Order Date :- 23.10.2018
Himanshu
