Uttarakhand High Court
Sharma vs Rajpal Tyagi And Others" on 2 July, 2021
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WPMS No.1244 of 2021
Hon'ble Sharad Kumar Sharma, J.
(Via video conferencing).
Ms. Prabha Naithani, Advocate, for the
petitioner.
The petitioner is a plaintiff in a Suit
being Suit No.152 of 2021, "Jeevan Prasad
Sharma Vs. Rajpal Tyagi and others", wherein,
he has sought a decree by way of a decree of
permanent injunction, as against the defendants
in relation to the property, which has been more
appropriately described at the foot of the plaint
constituting to be the "Ahata Panchsheel
Mandir Ashram", which he contends that it was
bequeath to him, by virtue of a "Will" dated
21.06.2010, which was executed in his favour,
by its predecessors owner Mr. Ravindra Nath
Mukherjee. When there was an act of wrongful
and malicious interference, which has been
substantiated by the respondents by annexing
the photographs showing the act of demolition,
the petitioner had preferred the civil suit for the
grant of a injunction, which has been
accompanied with an application under Order
39 Rule 1 and 2 of the CPC, for granting
temporary injunction, during the pendency of
suit against the act of demolition, because if
permitted to be carried it would frustrate the lis
agitated by way of suit.
However, on the said application, the
learned Trial Court, has not passed any order,
of temporary injunction, and the same is
pending consideration and on account of its
pendency there is an imminent threat of
demolition, which has been faced by the
petitioner on account of the facts, which are
narrated in the writ petition, and supported by
the documents, filed with it.
Considering the peculiar facts and
circumstances of the case, and particularly, the
aspect that the action complained of as of now,
is that of the demolition being carried out at the
behest of the respondents, this writ petition is
being disposed of with a request to the court of
Civil Judge (Senior Division), Roorkee, District
Haridwar, to decided the application of the
petitioner filed under Order 39 Rule 1 and 2 of
the CPC, in the Civil Suit No.152 of 2021
"Jeevan Prasad Sharma Vs. Rajpal Tyagi and
others", as expeditiously as possible, but not
later than six weeks from the date of
presentation of a certified copy of this
judgment.
However, it is made clear that since the
issue involved, is with regards to the act of
demolition, which is being complained of, it is
provided that till the application of the
petitioner under Order 39 Rule 1 and 2 of the
CPC, is decided itself by the learned civil court,
none of the defendants, would engage
themselves in any act of demolition, till the
application is decided.
However, this order would also carry the
certain clarification limited to the extent that
this interim protection which has been granted
by this Court, to the petitioner/plaintiff, would
be confined to the extent of six weeks, and it
may not prejudice the minds of the learned civil
court, while deciding the aforesaid application
of the petitioner under Order 39 Rule 1 and 2 of
the CPC, which will be decided exclusively on
its own merit.
Subject to the above observations, the
writ petition stands disposed of.
(Sharad Kumar Sharma, J.)
02.07.2021
NR/
