Allahabad High Court
Banarsi & Others vs Court Of Addl. District Judge, ... on 9 March, 2021
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 21
Case :- MISC. SINGLE No. - 5771 of 2021
Petitioner :- Banarsi & Others
Respondent :- Court Of Addl. District Judge, Court No.1 Barabanki & Ors.
Counsel for Petitioner :- Anand Shanker Asthana,Deepak Mishra,Dhruv Bhatt
Hon'ble Jaspreet Singh,J.
Heard learned counsel for the petitioners.
By means of instant petition, the petitioner assails the order dated 9.11.2017 passed by Civil Judge (Junior Division), Court No.14, Barabanki in R.S. No. 111 of 2017 whereby upon hearing the parties the application of the plaintiff-petitioner under Order 39 Rule 1 & 2 has been dismissed. The petitioner carried the matter before the lower appellate court in Misc. Civil Appeal No. 21 of 2017 which has also met with same fate by means of judgment dated 18.11.2020.
Assailing the aforesaid two orders, learned counsel for the petitioners has submitted that the petitioners had initiated a suit for cancellation of sale deed on the basis of fraud committed by the private respondents. It is further stated that the plaintiff-petitioners are in possession of disputed property in question and in view of the fact that the sale deed was procured by practicing fraud and the two courts while passing the order have not considered the element of fraud and that the petitioner is in possession of the property in question.
The Court has gone through both the orders and also perused the record. Apparently, from the perusal of the plaint, a copy of which has been brought on record as Annexure-2, it indicates that the petitioner has pleaded that the sale deed in question has been obtained by fraud. However, the manner and particulars regarding fraud have not been pleaded specifically. The trial court also after considering the submissions did not find favour with the fact that the plaintiff-petitioners were in possession over the property in question. Considering that no case for interference was made out, the application was rejected by means of order dated 9.11.2017. The lower appellate court has also dealt with the matter in detail and after referring to the provisions as well as the decisions cited by the parties has recorded a finding that prima facie neither the grounds of fraud have been made out nor the possession could be established.
The two courts have considered the submissions as well as noticed that on the basis of averments as well as the material on record the plaintiff-petitioner could not establish a prima facie case nor the balance of convenience and irreparable injuries could be established. These are three vital ingredients which have to be considered before any interim order can be passed.
Having viewed the two orders, this Court is not inclined to interfere in the same nor can at this stage substitute its own finding. The learned counsel for the petitioner also could not point out any perversity or any patent illegality in the order passed by the two courts, hence, in the facts and circumstances this Court does not find this case to be appropriate for interfering under Article 227 of the Constitution of India.
The petition is, accordingly, dismissed.
However, it is provided that the Civil Judge (Junior Division), Court No.14, Barabanki shall consider and decide the suit of the petitioner expeditiously without granting unnecessary adjournments to either of the parties.
Order Date :- 9.3.2021
Vikas/-
