Allahabad High Court
Hazi Mohammad Sharif vs Mohammad Yusuf on 27 May, 2022
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 10
Case :- FIRST APPEAL FROM ORDER No. - 1214 of 2022
Appellant :- Hazi Mohammad Sharif
Respondent :- Mohammad Yusuf
Counsel for Appellant :- Ishir Sripat,Sr. Advocate
Counsel for Respondent :- Rahul Pandey
Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri Rahul Sripat, Senior Advocate, assisted by Sri Ishir Sripat, learned counsel for the appellant and Sri Rahul Pandey, learned counsel for the respondent.
2. This appeal filed under Order 43 rule 1(r) of the Code of Civil Procedure arises out of order dated 20.12.2021 passed by Civil Judge (Senior Division), Bulandshahr on the application 6-C filed by the plaintiff in Original Suit No.1030 of 2021.
3. The plaintiff-respondent filed Original Suit No.1030 of 2021 against the defendant-appellant claiming relief of permanent injunction restraining defendant from damaging the property in dispute and also not dispossess the plaintiff-respondent without following procedure of law. Along with the said suit an application 6-C was filed for temporary injunction.
4. The Court below vide order dated 20.12.2021 directed the parties to maintain status quo over the property in dispute.
5. Sri Rahul Sripat, Senior Advocate, appearing for the appellant submitted that the suit filed by the plaintiff-respondent was not maintainable as no injunction can be granted against the true owner. He placed reliance upon decision of Apex Court in the case of Kochkunju Nair vs. Koshy Alexander and Ors. (1999) 3 SCC 482 and also decision of coordinate bench of this Court in Matter under Article 227 No. 1428 of 2019 (Rambhaj vs. Atma Ram and 4 others) decided on 29.03.2019 and judgment of Division Bench of this Court dated 09.01.2013 in F.A.F.O. No.3529 of 2012 (Smt. Gulminder Kaur Mahal & Anr. vs. Indraj Singh).
6. Learned Senior Advocate further contended that in the garb of the injunction order, the plaintiff-respondent has tried to stop functioning of the business of the defendant which was being run from the premises in question.
7. Refuting the allegations, Sri Pandey, counsel appearing for the respondent submitted that the appellant has also filed an Original Suit No.9 of 2022 against the plaintiff-respondent claiming relief of permanent injunction. He further contended that an application 6-C was moved in the said suit on 05.01.2022 and the same is still pending consideration. According to the counsel for the respondent, the order of status quo could not fall under the definition of Order 39 Rule 1 and 2 C.P.C. as the Court had prevented the property from being damaged. No order has been passed restraining the appellant and only the property in question has been preserved and thus the reliance placed upon various decision of this Court is not applicable in the present case.
8. Having heard the counsel for the parties and with the consent of the respective counsel the appeal is being disposed of modifying the order dated 20.12.2021 to the extent that both the parties shall carry out their respective business from the premises in dispute and the order granted on 20.12.2021 shall not come in way of working of the respective parties.
Order Date :- 27.5.2022
Kushal
