Allahabad High Court

Jeet Narayan vs State Of Up And 9 Others on 1 October, 2024

Author: Prakash Padia

Bench: Prakash Padia





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:160310
 
Court No. - 7
 

 
Case :- WRIT - C No. - 28846 of 2024
 

 
Petitioner :- Jeet Narayan
 
Respondent :- State Of Up And 9 Others
 
Counsel for Petitioner :- Brijesh Kumar,Hriday Narayan Pandey
 
Counsel for Respondent :- Azad Rai,C.S.C.
 

 
Hon'ble Prakash Padia,J.

1. The petitioner has preferred the present writ petition inter-alia with the following prayer:-

"i) a writ, order or direction in the nature of Mandamus commanding the respondent authorities i.e. respondent no. 2/ Sub Divisional Magistrate to consider the matter according to law and decide the injunction application filed by the petitioner against the respondent no.8."

2. After hearing counsel for the parties at length, the following order was passed by this Court on 26.09.2024:-

"1. The following order was passed by this Court on 17.09.2024:-

"1. Heard Sri Hriday Narayan Pandey, learned counsel for the petitioner, Sri Vijay Shankar, learned Additional Chief Standing counsel and Sri Azad Rai, learned counsel for respondent no.10.

2. The petitioner has preferred the present petition inter alia with the following prayer:-

"i) a writ, order or direction in the nature of Mandamus commanding the respondent authorities i.e. respondent no.2/Sub-Divisional Magistrate to consider the matter according to law and decide the injunction application filed by the petitioner against the respondent no.8."

3. Brief facts as contained in the present petition are that the suit in question was filed by the present petitioner in the court of Sub-Divisional Magistrate, Handia, Prayagraj being Case No. NIL of 2024 under Section 116 of U.P. Revenue Code, 2006 and along with the said suit, an application for grant of interim injunction was also filed.

4. It is argued by learned counsel for the petitioner that the aforesaid suit was admitted and notices were issued to the opposite party fixing 16.08.2024 and order of status quo was also passed on 30.07.2024 but in-spite of the same, the private respondents are adamant to make construction over the plot in question in respect of which the suit in question has been filed by the petitioner before the court below.

5. While going through the record, this Court is very much shocked and surprised that a judicial authority namely Sub-Divisional Magistrate, Handia, Prayagraj has passed an order of status quo in the suit filed by the petitioner under Section 116 of the U.P. Revenue Code on the very first day. It further reveals that the suit was filed for the first time in his Court on 30.07.2024 and on the same day while issuing the notices in the suit, without recording any finding and by way of footnote of first page of the plaint itself, an order of status quo has been passed. Photocopy of the order passed by the respondent no.3 in the plaint is appended at Page No.57 of the paper-book.

6. For the grant of interim injunction three facts should be taken into consideration namely, (i) prima facie case, (ii) irreparable loss and injury (iii) balance of convenience but without considering any of the aforesaid aspects of the matter and without recording any finding in this regard, the interim protection was granted citing the possibilities of law and order problem.

7. For the grant of interim injunction, a notice could be issued to the defendants and only after hearing the parties concerned appropriate order should be issued.

8. It is also settled law that in case the court wants to grant an ex-parte injunction, all the aspects of the matter should be dealt with namely, (i) prima facie case, (ii) irreparable loss and injury (iii) balance of convenience.

9. Insofar as the present case is concerned, it is clear that the interim injunction was granted without dealing with any of the aforesaid aspect in this regard.

10. The principles for grant of interim injunction in any case has been dealt by the Hon'ble Apex Court in Case of Makers Development Services (P) Ltd., Vs. M. Visvesvaraya Industrial Research & Development Centre, reported in 2012 (1) SCC 735. The relevant paragraphs of the aforesaid judgment are quoted as under:-

"11. It is settled law that while passing an interim order of injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908, the Court is required to consider three basic principles, namely, a) prima facie case, b) balance of convenience and inconvenience and c) irreparable loss and injury. In addition to the above mentioned three basic principles, a court, while granting injunction must also take into consideration the conduct of the parties.

12. It is also established law that the Court should not interfere only because the property is a very valuable one. Grant or refusal of injunction has serious consequences depending upon the nature thereof and in dealing with such matters the court must make all endeavours to protect the interest of the parties."

11. From perusal of the record it transpires that none of the aforesaid aspect has been taken into consideration by respondent no. 3 while passing the aforesaid order.

12. The order was passed by respondent no.3- Sub-Divisional Magistrate, Handia, Prayagraj, who is holding a very important post in the District, this Court is of prima facie opinion that the order impugned has been passed without application of mind and is in complete violation of law laid down by the Hon'ble Apex Court.

13. In this view of the matter, the respondent no.3-Sub-Divisional Magistrate, Handia, Prayagraj, is directed to file his personal affidavit within a period of seven days from today explaining that under what circumstances the aforesaid order has been passed by him without considering the relevant aspects of the matter.

14. Put up this matter as fresh for further hearing on 26.09.2024.

15. Sri Vijay Shankar, learned Additional Chief Standing Counsel is directed to supply a copy of this order to respondent no.3 within 48 hours."

2. Today when the matter is taken-up, Sri Vijay Shanker Prasad, learned Additional Chief Standing counsel has placed before this Court, a copy of e-mail dated 19.09.2024 which was sent by his office to the respondent no.2- Sub Divisional Magistrate, Handia, District Prayagraj. The same is taken on record and marked as Ex. (A) to the paper-book.

3. In this view of the matter, this Court has no other option to direct the respondent no.2-Sub Divisional Magistrate, Handia, District Prayagraj to appear before this Court on the next date fixed in the matter.

4. Put up this matter as fresh on 01.10.2024 for further hearing.

6. Registrar (Compliance) is directed to forward a copy of this order to respondent no.2-Sub Divisional Magistrate, Handia, District Prayagraj through District Magistrate, Prayagraj within 24 hours. "

3. Pursuant to the same, a personal affidavit has been filed by Shri Avinash Yadav, presently posted as Sub-Divisional Magistrate,Tehsil- Handia, District Prayagraj, the same is taken on record.

4. It is stated in paragraph-8 of the aforesaid affidavit that answering respondent has joined the post as Sub-Divisional Magistrate, Tehsil-Handia, District Prayagraj on 21.09.2024 and an order in respect of query has been made by this Court was passed by the Sub-Divisional Magistrate, Hadia on 30.07.2024. Apart from the same, it is stated in paragraph-6 of the aforesaid affidavit that son of the petitioner namely Ram Yadav has filed a Suit for permanent injunction in the Court of Civil Judge (Junior Division), Prayagraj being Original Suit No. 478 of 2024 which is still pending.

5. From perusal of the record, it transpires that in the said suit an order dated 19.02.2024 was passed by the Civil Judge (Junior Division), Prayagraj refusing to grant ex-parte injunction, copy of which is appended at page-82 to the paper book. It further reveals from perusal of the record that concealing the aforesaid fact regarding the suit filed by the son of the petitioner as stated, Shri Jeet Narayan filed a Suit under Section 116 of the U.P. Revenue Code, 2016 in the Court of Sub-Divisional Magistrate, Handia, Prayagraj.

6. For the reasons best known to the Sub-Divisional Magistrate, an order of status quo has been passed on the said application on 30.07.2024.

7. Heard counsel for the parties and perused the record.

8. From perusal of the record, the Court is more than satisfied that the order dated 30.07.2024 passed by the then Sub-Divisional Magistrate, Handia is absolutely illegal and liable to be set aside and is hereby set aside.

9. Since Sub-Divisional Magistrate concerned is present in the Court today, he is directed to pass appropriate orders in the aforesaid proceedings strictly in accordance with law within a period of three weeks from today.