Om Prakash And 2 Others vs Ram Khiladi (Deceased) And 12 ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:179290
 
Court No. - 1
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 6752 of 2023
 

 
Petitioner :- Om Prakash And 2 Others
 
Respondent :- Ram Khiladi (Deceased) And 12 Others
 
Counsel for Petitioner :- Shyam Lal,Abhilasha Singh,Ashutosh Yadav
 

 
Hon'ble Jayant Banerji,J.

1. Heard learned counsel for the petitioners.

2. This petition has been filed seeking the following relief:

"1. Allow this petition; and/or

2. Set aside the order dated 18.05.2023, to the extent of inviting objections against the stay application 9C2, passed by the learned In-charge District Judge, Hathras in Civil Appeal No. 30 of 2023, Om Prakash and others Vs. Ram Khiladi and others; and/or,

3. Direct that status quo be maintained by the parties over the property in dispute till final disposal of Civil Appeal No. 30 of 2023, Om Prakash and others Vs. Ram Khiladi and others, or stay application 9C-2 moved in the appellate court for grant of stay order in Civil Appeal No. 30 of 2023, Om Prakash and others Vs. Ram Khiladi and others; and/or,"

3. It appears that the plaintiff-petitioners instituted a suit, being Original Suit No. 57 of 2012, seeking cancellation of sale deed and injunction, which came to be dismissed by means of a judgment and order dated 18.04.2023. Thereagainst, the petitioners filed Civil Appeal No. 30 of 2023 in the court of the District Judge, Hathras, in which an application, stated to be Paper No. 9C2 was filed on 16.05.2023, for injuncting the defendants from interfering in the peaceful possession and title of the appellants.

4. By the impugned order dated 18.05.2023, while admitting the appeal, the In-charge District Judge, Hathras directed issuance of notice.

5. The contention of the learned counsel for the petitioners is that once the appeal was admitted, it was incumbent on the appellate court to pass an order of injunction rather than merely issuing notice on the injunction application, given the fact that civil consequences are involved and valuable civil rights of the petitioners are affected. Learned counsel for the petitioner, in support of his contention, relied upon a judgment of the Supreme Court in Mool Chand Yadav Versus Raza Buland Sugar Company Limited, Rampur (1982) 3 SCC 484.

6. I have perused the aforesaid judgment of the Supreme Court. The appeal before the Supreme Court was against an order passed by the High Court on a first appeal from order against an order passed by the trial court, directing the defendant to vacate the disputed room, failing which the immovable properties of defendant Nos. 2 and 3 therein would be attached. The High Court had refused to grant any interim order while admitting the appeal. Under the circumstances, the Supreme Court observed that judicial approach requires that during the pendency of the appeal, the operation of an order having serious civil consequences must be suspended, especially when the appeal is admitted.

7. However, in the instant case, the suit itself of the petitioners has been dismissed. The appellate court, while admitting the appeal has directed issuance of notice.

8. Under the facts and circumstances of the case, the judgment of the Supreme Court is distinguishable. I find no error or illegality in the order of the appellate court issuing notice.

9. This petition is, therefore, dismissed.

Order Date :- 18.9.2023

K.K.Tiwari

(Jayant Banerji, J.)