Allahabad High Court
Phool Chandra vs Civil Judge (S.D.), Faizabad And ... on 23 May, 2022
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 5
Case :- MATTERS UNDER ARTICLE 227 No. - 1640 of 2022
Petitioner :- Phool Chandra
Respondent :- Civil Judge (S.D.), Faizabad And Others
Counsel for Petitioner :- Mohammad Ehtesham Khan
Hon'ble Mrs. Sangeeta Chandra,J.
Heard learned counsel for the petitioner Shri Mohd. Ehtesham Khan.
This petition is filed with the prayer to set-aside the order dated 23.03.2022, passed by opposite party no.1 in Original Suit No.135/2022 [Gopal Dwivedi and Others vs. Sona Devi and Others]. A further prayer has also been made for issuing a direction to the opposite party no.1 to decide the stay vacation application moved by the petitioner and opposite party no.8 to 11 on 30.4.2022 in Original Suit No.135/2022.
Learned counsel for the petitioner submits that one Ram Prasad was the original owner of the Gata No.111, Area 02-16-10 situated in village ? Majha Meerapur Dwaba, Pargana ? Haveli Oudh, Tehsil - Sadar, District ? Ayodhya. After his death his son Krishna Kumar became the owner / recorded tenure holder of gata no.111. Krishna Kumar died at an early age when his two sons Phool Chandra and Sri Chandra were minors. Their names were mutated in the revenue record through their mother Smt. Sona Devi, widow of Late Krishna Kumar.
One Laxmi Narayan who had got his name entered fraudulently under category 9, i.e., a person who has possession without title, in the revenue record, alleged to be in possession and made out a will in favour of one Ramanand although under Section ? 169 of the UPZALR Act only a 'bhumidhar' with transferable rights can bequeath property through will.
Laxmi Narayan bequeathed his property to one Ramanand. Ramanand got his name mutated in the revenue record again fraudulently on 25.6.1990. When the petitioners came to know they filed a recall application which was rejected on 21.03.2005. The petitioners filed two appeals, one against the order dated 25.6.1990 and other against order dated 21.3.2005. Both the appeals were allowed by the Collector/ Record Officer on 25.8.2006 and the matter was remanded to the Tehsildar to decide the mutation application afresh.
In the meantime, on the basis of fraudulent entry in the revenue records Ramanand had sold property to one Medi Lal on 04.12.1990. The heirs of Medi moved a mutation application which was allowed on 07.3.2005. The recall application against such order passed in mutation application has been moved by the petitioner and the opposite parties no. 8 to 11 which is pending before the Tehsildar.
A suit for permanent injunction on the basis of sale-deed executed by Ramanand to Medi has been filed by the opposite party no.2 to 7 namely R.S. No. 135/2022 and it was taken up by the trial court on 23.3.2022 and the ad-interim injunction was granted on the basis of sale-deed and orders passed in mutation which sale deed and mutation orders have been seriously disputed and cases regarding the same are pending before the competent courts by the petitioners. The petitioners would have no grievance if ad interim injunction was limited only to the extent of maintenance of status-quo because the petitioners have admittedly possession over the land of Gata No.111 but while granting the ad-interim injunction the learned trial court has granted final relief by injuncting the petitioners not to interfere in the possession of the respondents no.2 to 7.
When petitioners came to know of such order being passed on receipt of summons, they filed an application for vacation of ad-interim injunction on 13.4.2022 along with an objection to the application for temporary injunction which application has remained pending. In the meantime, on the basis of the order of interim injunction granted on 23.3.2022 the respondents no.2 to 7 have filed an application under Section 151 CPC alleging that the petitioners are interfering in the possession of the respondents no.2 to 7 and prayed that the trial court may direct the police/ local administration to enforce the ad interim injunction dated 23.3.2022. Such application has been moved by the respondents no.2 to 7 on 02.5.2022.
In response to a specific query made by this Court as to whether the orders passed by the trial court could not have been appealed again by the petitioner, the learned counsel for the petitioner has placed reliance upon the judgment rendered by the co-ordinate bench of this court in Gurmej Singh vs. Ranjit Kaur [2021 AIRCC 865 (All)] wherein this Court after considering the provisions of Order 39 Rule 1 and 2 of CPC and also Orders 43 Rule 1 ( r ) CPC has observed that an appeal against the order of ex-parte interim injunction can be filed provided that the application for temporary injunction is not finally disposed of by the trial court within six months from the date of its filing. This Court has considered in the said judgment of Gurmej Singh (supra) that Order 39 Rule 3 A CPC which was earlier present and enforcible in the State of U.P. but was later on deleted by notification dated 03.02.1981 wef 03.10.1981. Under Rule 3 A (now deleted in the State of U.P.) the ex-parte ad-interim injunction could be vacated within the expiry of 30 days of the date of such order being passed, however, after the deletion of Order 39 Rule 3 A CPC in the State of U.P. the High Court at Allahabad has issued a circular letter dated 16.8.2017 regarding time bound disposal of the interim injunction application by the said letter/ circular, this Court has directed that all subordinate courts must ensure disposal of application of interim injunction within six months failing which they shall have to record reasons in the order sheet.
This Court in the case of Gurmej Singh also considered the observations made by the full Bench decision of this Court in Zila Parishad Budayun and Others vs. Brahma Rishi Sharma [AIR 1970 Allahabad 376 (FB)] which was rendered in the year 1970 much prior to the insertion of the proviso to Rule 3 of the Order 39 CPC and Rule 3 A of Order 39 CPC and, thereafter, has observed in para 38 of its judgment that an appeal against an ex- parte ad interim injunction would be maintainable only after expiry of 30 days where the provision of Rule 3 A of Order 39 CPC is in force, however, in the State of U.P. since the circular dated 16.8.2017 has been issued providing for six months time for disposal of an applications of interim injunction failing which the subordinate court must have to record the reasons in the order sheet, therefore, such miscellaneous appeal would be maintainable only after expiry of six months.
Learned counsel for the petitioner submits that if the petitioners are forced to wait for six months from the date of passing of order and file miscellaneous appeal thereafter under Order 43, they would be dispossessed of Gata No.111 as the application filed by the plaintiffs- respondents no.2 to 7 on 02.5.2022 under Section 151 CPC has prayed the trial court to get its ad-interim injunction enforced through District administration.
It has been argued that the application filed by the petitioner for vacation of ex-parte ad interim injunction is pending since 30.4.2022 and the trial court has not passed any order thereon.
This petition is disposed of with a direction to the learned trial court to decide the application for vacation of ad-interim injunction filed by the petitioners on 30.4.2022 at the earliest say either on the next date fixed or within three months thereafter. The ex-parte ad interim injunction granted by the trail court is modified also by directing the parties to maintain status-quo as on date till disposal of the application for vacation already pending before the learned trial court.
Order Date :- 23.5.2022
mks
