Allahabad High Court
Prabhaker Mishra vs Addl. Civil Judge Court No 21 ... on 22 June, 2022
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Case :- MATTERS UNDER ARTICLE 227 No. - 2175 of 2022
Petitioner :- Prabhaker Mishra
Respondent :- Addl. Civil Judge Court No 21 (S.D.) Lko. And 8 Others
Counsel for Petitioner :- Gyan Sagar Gupta,Tajdar Ahmad
Hon'ble Shree Prakash Singh,J.
Heard learned counsel for the petitioner and perused the record.
Notices to respondent nos. 2 to 6 are hereby dispensed with.
Learned counsel for the petitioner submits that petitioner had purchased the land in question from one Mukund Chaudhary who was recorded as tenure holder in khatauni. He submits that aforesaid land was purchased on 20.05.2022 through registered sale deed. Infact the respondent no. 2 to 9 are the son of Chaudhary Ram Nath from whom Sri Mukund Chaudhary had purchased the land. He submits that the respondent nos. 2 to 9 has started making hindrance in the peaceful possession of the petitioner and as such he has filed a civil suit on 31.05.2022 along with the application under Section 39 Rule 1 and 2 read with 151 CPC. On the aforesaid application the learned civil court has fixed the date on 16.07.2022. He submits that respondents are making hindrance over the land in question and they are trying to disturb the peaceful possession.
During the course of argument learned counsel for the petitioner has placed reliance on the judgment passed by co-ordinate Bench of this Court which is quoted as under:-
"Heard learned counsel for the petitioner.
The present writ petition has been filed by the petitioner for the following main reliefs:-
"i) To issue a order or direction thereby commanding the opposite party no.1 to decide the application under Order 39 Rule 1 & 2 read with Section 151 CPC dated 08.01.2019 filed by the petitioner in Regular Suit No.511 of 2010 (Dinesh Kumar Chaudhary vs. Jagroop Singh & Ors.).
ii) To issue a order or direction thereby commanding the opposite party no.1 to restrain the opposite party nos.2 to 8 from changing the nature of the land in question thereby raising constructions over the same till the final disposal of Regular Suit No.511 of 2010 (Dinesh Kumar Chaudhary vs. Jagroop Singh & Ors.)."
Learned counsel for the petitioner submitted that the petitioner has filed a Regular Suit No.511 of 2010 for permanent injunction and the stay application is pending before the court below and the next date is fixed on 09.07.2019. In the meantime, respondents are raising constructions over the property in question. Therefore, kind indulgence of this Court is necessary.
Learned counsel for the petitioner has relied on the case law decided by this Court in the case of Kendriya Karmchari Sehkari Grih Nirman Samiti Ltd. vs. New Okhla Industrial Development Authority reported in (2008) 73 ALR 180. Paragrah 9 of the judgment is readsasunder:-
"9. Upon going through the facts and circumstances of the case and consideration made by the Division Bench of this Court and the Supreme Court extensively, we are of the view that in spite of cancellation of allotment the amount deposited by the society for the purpose of allotment of land has not yet been refunded. It is also an admitted position that there is no dispute as yet with regard to allotment of 34 bighas of land. These two factual aspects definitely give a clear indication of mind that the society had intention in its mind to get the land allotted but not to commit a fraud. It is true to say that at the time of submission of application by any society availability of the members is given, which may increase subsequently. Had it been the case of fraud, it would have been detected by the Registrar of the Co-operative Societies either on the basis of the application of any members or the society itself or suo-motu when such a large area of land is going to be allotted by the Government to a society. Therefore, area, but not the members, is a question of subjective decision to be taken on the basis of the joint inspection by the society and the authority. It could have been revealed in that manner. The Court below at an interim stage has proceeded in a wrong premises. It has proceeded in a manner as if it is going to finally conclude hearing of the suit which is a gross mistake. On the other hand, the Division Bench had also decided it in a writ petition. The Supreme Court while considering the cause has categorically held when there is a question of title involved and the decision is to be taken on the basis of material evidence, a final conclusion cannot be drawn by the Writ Court. But that does not necessarily mean that evidential value available to the Division Bench of this High Court, while deciding the writ petition, will be ignored particularly in a situation when the authority in spite of cancellation of allotment did not return huge amount of money of about Rs. 36 crores and is enjoying its interest till today. In such circumstances, the best course open for the Court below is to expedite the process of hearing directing to maintain status quo. In case of passing or refusing grant of injunction, the Court will obviously see the prima facie case, balance of convenience and irreparable loss. In this case, such elements are available. In case of cancellation of allotment, for which such a huge money has been received but not refunded as yet, a question of estoppel, if not, a question of expectation arises. The defendant-respondent authority cannot avoid liability when they have received a huge sum of purported Rs. 36 crores and are enjoying the fruits of the same. It appears to us that other societies standing on the equal footing have already got the allotment. Increase of number of the members of a society can not disentitle such society absolutely from getting the land in question. It is not the domain of the authority unless it violates the law made for it. If today the land, which has purportedly been allotted to the society, is given to a third party, right of such third party will accrue. In such circumstances, attempt of the appellant will be futile. The society will have no other alternative but to ask back the money in the place and instead of land in question, for which society was formed and the members have invested good amount of money. Hence, it is not a case where element of interim injunction is not available at all. Even if it is so, when the question of immovable property is involved, the Court below could have expedited the hearing of the suit with direction to the parties to maintain status quo. An absolute refusal of grant of injunction on the part of the Court below appears to be faulty. In Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass [2004 (57) ALR 428 (SC) : 2004 (23) AIC 39.] , it has been held that unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damages being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In Sunni Central Board of Waqfs U.P v. Gopal Singh Visharad [2001 (45) ALR 73 (FB).] , Bhardwaj Medical Centre v. N.O.I.D.A. Authority [ 1995 (3) AWC 1573 (DB) : 1996 (27) ALR 11 (Sum.).] and Vidya Matri Mandir (Regd.) Meerut Road, Ghaziabad v. Rajinder Nath [1991 (18) ALR 408.] , in various circumstances, the Court held that to avoid the municipality of proceedings and for the ends of justice there would not be any error in passing the order of status quo in an appropriate circumstance. In Smt. Rajnibai @ Mannubai v. Smt. Kamla Devi [1996 (27) ALR 335 (SC).] , it has been held by the Supreme Court that Order XXXIX, Rules 1 and 2 of C.P.C. could be availed of only when the property, subject-matter therein, is in danger of being wasted, damaged or otherwise being dealt with."
Considering the aforementioned facts and circumstances of the case, notices to the private-respondents are waived off and Civil Judge Fast Track Court, District Raebareli is directed to decide the stay application of the petitioner by the next date of listing. Till then, status quo as exists today shall be maintained.
With the above directions, writ petition is disposed of."
Considering the aforesaid facts and circumstances of the case, the respondent no. 1 i.e., Additional Civil Judge Court No. 21 (S.D.) Lucknow, is hereby directed to decided the application of the petitioner under Order 39 Rule 1 and 2 read with Section 151 CPC on the next date of listing.
The petitioner also undertakes that he will not seek any adjournment on the next date.
Till then status quo shall be maintained by the parties.
With the aforesaid observation, the writ petition is disposed of.
It is further made clear that this order will remain in operation till the decision on application under Order 39 Rule 1 and 2.
Order Date :- 22.6.2022
Ujjawal
