Unknown vs Smt. Abda & Others
2021 Latest Caselaw 16 UK

WPMS No. 7 of 2021
Hon'ble Sharad Kumar Sharma, J.

Mr. Bilal Ahmed, Advocate for the petitioner.

The petitioner is a plaintiff in a Suit, being Suit No. 106 of 2020, Naseem Ahmad Vs. Smt. Abda & others, in which he has chosen three defendants to be made as party i.e. Smt. Abda, Smt. Raesha and Smt. Farida. The suit accompanied with an Application under Order 39 Rule 1 & 2 of CPC and the learned trial Court, based on the plaint averments with regards to the right claimed by the plaintiff in relation to the property in dispute had granted an injunction by the order dated 26.09.2020.

Aggrieved against the said order, a Miscellaneous Civil Appeal under Order 43 Rule 1 (r) of CPC, was preferred by the defendants before the Court of 1st Additional District Judge, Roorkee, District Haridwar, which was numbered as Miscellaneous Civil Appeal No. 4 of 2020, Smt. Abda and others Vs. Naseem Ahmed.

By the judgment impugned under challenge i.e. dated 21.12.2020, the appellate Court, while setting aside the order of injunction dated 26.09.2020, has remitted the matter back to the trial Court, directing to reconsider the Application of the plaintiff, which was preferred under Order 39 Rule 1 & 2 of CPC, and the logic, which has been assigned by the Court below, particularly, the finding which has been recorded in para 3 and 13, it was to the effect that the plaint averments and the Application which was filed under Order 39 Rule 1 and 2 of CPC was based on the concealment of facts and by misleading the Court for the purposes of inducing the Court for granting the injunction.

I am of the view that in an equitable jurisdiction under Article 227 of the Constitution of India, the Court cannot extend any solace in a judicial proceeding to any of the litigant, who does not approach to the Court with clean hands and attempts to procure order by bringing in correct facts on record. If that has constituted as to be the reason to set aside the injunction, which was already granted in favour of the petitioner in view of the findings recorded in paragraphs 3, 13, 14 and 16 of the appellate Courts judgment, that in itself is a sufficient ground not to interfere against an order of remand.

On this sole ground itself that since the petitioner had not been fair to the Court itself while pressing his Application under Order 39 Rule 1 & 2 of CPC; its setting aside by the Appellate Court and remitting the matter back to the trial Court for its fresh decision does not call for any interference under Article 227 of the Constitution of India, the writ petition is accordingly dismissed.

(Sharad Kumar Sharma, J.) 05.01.2021 Mahinder/