WPMS/1383/2021
2021 Latest Caselaw 2876 UK

IN THE HIGH COURT OF UTTARAKHAND
                     AT NAINITAL
        ON THE 5TH DAY OFAUGUST, 2021
                            BEFORE:
 HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
     WRIT PETITION (M/S) No. 1383 of 2021

BETWEEN:

Smt. Kumud Vaidya                          ... Petitioner
     (By Mr. Arvind Vashisth, Senior Advocate assisted by Mr.
     Kaushal Pandey, Advocate)

AND:
Devender Kumar & others                    ... Respondents
     (There is no representation for the respondents)


                           JUDGMENT

1. Petitioner filed a suit for permanent injunction. She also filed an application seeking temporary injunction along with suit. Learned trial court issued notices on the temporary injunction application fixing 19.07.2021. Thus, feeling aggrieved, petitioner has approached this Court challenging the order dated 08.07.2021.

2. Learned counsel for the petitioner submits that petitioner is the rightful owner of the property in question, however, defendants are trying to encroach upon petitioner's property taking advantage of the travel restrictions imposed due to COVID-19. Thus, according to him, learned trial court ought to have granted ex-parte interim injunction order in favour of the petitioner.

3. This Court does find any substance in the contention raised on behalf of the petitioner. Order

39 Rule 3 C.P.C. ordains that grant of ex-parte temporary injunction is an exception and issuance of notice is a Rule before granting any ex-parte temporary injunction.

4. In such view of the matter, this Court does not find any infirmity in the order impugned in the writ petition.

5. Learned counsel for the petitioner submits that the next date fixed before the trial court is 16.08.2021. He further submits that some of the defendants have been served and petitioner will take Dasti Notice to ensure that the remaining defendants to the suit are also served within two weeks.

6.            Having      considered      the     facts   and
circumstances       of    the   case,   the   writ petition is

disposed of with a request to learned trial court to decide petitioner's temporary injunction application on the next date fixed i.e. 16.08.2021 or any other date within four weeks thereafter.

7. For a period of six weeks or till decision is taken on temporary injunction application, whichever is earlier, status quo shall be maintained qua the land in question.

8. However, it is made clear that this Court has not expressed any opinion on the merits of the claim made by the petitioner, therefore, learned trial court shall consider temporary injunction application on its merits, without being influenced by the order of this Court.

(MANOJ KUMAR TIWARI, J.) Aswal