Allahabad High Court
Rajendra Prasad Verma vs Civil Judge Court No 13 Barabanki ... on 21 June, 2022
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Case :- MATTERS UNDER ARTICLE 227 No. - 2155 of 2022
Petitioner :- Rajendra Prasad Verma
Respondent :- Civil Judge Court No 13 Barabanki And 3 Others
Counsel for Petitioner :- Umesh Chandra,Desh Raj Chaurasiya
Hon'ble Shree Prakash Singh,J.
Heard learned counsel for the petitioner and perused the record.
Notice to respondent no. 2 is hereby dispensed with.
By means of the instant writ petition the order dated 10.05.2022 passed by respondent no. 1 i.e., Civil Judge (J.D) Court No. 13, District Barabanki is under challenge.
Learned counsel for the petitioner submits that petitioner had filed a regular suit no. 597 of 2022 (Rajendra Prasad Verma vs. Vinod Kumar and Others) before the opposite party no. 1 on 10.05.2022, for cancellation of sale deed dated 23.11.2021. The aforesaid suit was filed by way of fraud and fabrication as the area of land which was mentioned in the sale deed has been extended as zero and has made it out of .400 hectare in place of .40 hectare. He further contended that infact the petitioner was suffering from disability of 90% low vision as well as 45% of hard hearing. The petitioner has raised the aforesaid plea in para 15 of the application under Order 39 Rule 1 and 2 of CPC but while passing the order, Civil Judge i.e., respondent no. 1 did not consider the aforesaid fact and no finding has been recorded and the application under Order 39 Rule 1 and 2 of CPC has been rejected out rightly.
He further submitted that infact, the balance of convenience goes in favour of petitioner and if the aforesaid injunction is not been granted in favour of the petitioner. The respondent shall alienate the property and the very purpose of filing of the civil suit shall be frustrated.
Learned counsel for the petitioner has placed reliance on the judgment of Apex Court reported in AIR 2005 SC 104. While referring the aforesaid judgment, he submitted that if there is possibility of irreparable loss and damages to the property of the suit and the nature of the property would change by alienation or transferring the said property, the court has to secure the interest of such person.
Having heard learned counsel for the parties and after perusal of record, it is prima facie evident that the petitioner has very specifically raised the plea in para 15 of the application under Order 39 Rule 1 and 2 CPC but there is not a single whisper in the finding of Civil Judge (J.D.) while passing the order dated 10.05.2022. Since the petitioner had also enclosed the certificate of disability, hard hearing as well as low vision but that too was not discussed in the order impugned.
He argued that in such view of the matter, the order dated 10.05.2022 is not sustainable and thus the order dated 10.05.2022 passed by Civil Judge (J.D) Court No. 13 Baranaki is hereby set aside.
The matter is remitted back to the respondent no. 1 i.e., Civil Judge (J.D) Court No. 13 Barabanki to decide the application of the petitioner under Order 39 Rule 1 and 2 CPC and passed a reasoned and speaking order within 30 days considering the paragraph 15 of the said application as well as certificate dated 30.03.2022, from the date of production of copy of this order produced before him.
With the aforesaid observation, the writ petition is disposed of finally.
Order Date :- 21.6.2022
Ujjawal
