Allahabad High Court
Smt. Shahjahan Hussain And 6 Others vs Naseem Ahmad And 3 Others on 3 January, 2024
Author: Ashutosh Srivastava
Bench: Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:2926
Court No. - 50
Case :- MATTERS UNDER ARTICLE 227 No. - 13223 of 2023
Petitioner :- Smt. Shahjahan Hussain And 6 Others
Respondent :- Naseem Ahmad And 3 Others
Counsel for Petitioner :- Anuruddh Chaturvedi
Hon'ble Ashutosh Srivastava,J.
Heard Shri Anuruddh Chaturvedi, learned counsel for the petitioners.
Considering the nature of the order that is proposed to be passed, the service of notice upon respondent is being dispensed with.
The petitioners, who are the defendants in Suit No. 912 of 2022, have approached this Court under Article 227 of the Constitution of India for a direction to the learned Civil Judge (Jr. Div.), Court No. 1, Gorakhpur to pass appropriate orders on the applications 7C and 45C under Order 39 Rule 1 & 2 CPC filed by the plaintiff/respondents and the defendant/petitioners, respectively in Original Suit No. 912 of 2022 within a time frame fixed by this Court. A further prayer to restrain the respondents herein from interfering in the peaceful possession of the petitioners over the suit property, not to alienate the suit property or change its nature and character till disposal of the 7C and 45C applications, has been prayed for.
Learned counsel for the petitioners submits that the lis between the parties relates to House No. 102G, Area 5687 square feet, situate in Mohalla Mohaddipur Tappa Kasba Pargana Haveli, Tehsil Sadar, District Gorakhpur. The plaintiff/respondents have instituted a suit for permanent injunction not to interfere in the peaceful possession of the plaintiff/respondents over the suit property. The suit has been instituted on the allegation that on the strength of a final decree dated 20.5.2000 passed in a partition suit, being Suit No. 132 of 1985 and partition of the lots they have obtained possession over the suit property 102-G whereas the defendants/petitioners are in possession over their share which is house No. 102. On the temporary injunction application filed by the plaintiff/respondents under Order 39 Rule 1 & 2 CPC, the learned Civil Judge (Jr. Div.), Court No. 1, Gorakhpur granted exparte injunction requiring the parties to maintain status quo vide order dated 31.5.2022. The plaintiff/respondents in violation of the status quo order dated 31.5.2022 took possession of a shop under the tenancy of the petitioner Mohd. Farhaz Hussain, which incident was reported to the police authorities on the IGRS portal and FIR was lodged. The petitioners thereafter put in appearance in the suit proceedings and filed their written statement along with counter claim. They also filed an injunction application under Order 39 Rule 1 & 2 CPC (Paper No. 45C). In the written statement and counter claim, the petitioners have established the falsity of the claim of the plaintiff/respondents and asserted that the decree passed in Original Suit No. 132 of 1985 is being misinterpreted and from the discussion in the judgment and order dated 4.8.1989 passed in the Original Suit No. 132 of 1985 filed on record as Annexure-8A to the petition, has demonstrated that the plaintiff of the Suit No. 132 of 1985 had been granted 28/5 anna share only in the constructed portion of the house and the adjoining land falling under Plot No. 483/1 and 485/1 being agricultural property falling under share of defendant No. 3 Fatima Biwi was held to be unpartitionable. The unpartitioned portion subsequently has devolved upon the defendant/petitioners and the plaintiff/respondents have no claim over the same.
Learned counsel for the petitioners submits that the learned Trial Court vide its order dated 4.4.2023 fixed 11.4.2023 for disposal of the injunction applications 7C and 45C filed by the parties. However, even after passing of 09 months, the applications have not been decided and the pendency of the applications is causing irreparable loss to the petitioners as the plaintiff/respondents are trying to change the nature of the land in dispute illegally grabbed by them. He submits that the purpose of filing the petition would stand subserved if appropriate directions are issued to the learned Civil Judge (Jr. Div.), Court No. 1 Gorakhpur for expeditious disposal of the pending applications 7C and 45C.
I have heard learned counsel for the petitioners and have perused the record.
From the perusal of the records, I find substance in the arguments/submissions of learned counsel for the petitioners.
In the opinion of the Court, ends of justice, shall be sub served if the petition is disposed of by directing the learned Civil Judge (Jr. Div.), Court No. 1 Gorakhpur in seisin of the applications for temporary injunction (Paper No. 7C and 45C) filed by the respective parties in the Original Suit No. 912 of 2022 and the counter claim to pass appropriate orders deciding the said applications expeditiously preferably on the next date fixed or within 01 month of the date fixed upon service of certified copy of the order of this Court, in accordance with law.
Till the disposal of the said applications, the parties shall maintain status quo as regards the nature and possession of the suit property.
With the aforesaid observations/directions, the petition stands disposed of.
Order Date :- 3.1.2024
Ravi Prakash
(Ashutosh Srivastava, J.)
