WPMS/1251/2022
2022 Latest Caselaw 1749 UK

             Office Notes, reports,
             orders or proceedings
SL.
      Date     or directions and                     COURT'S OR JUDGES'S ORDERS
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             Registrar's order with
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                                      WPMS No. 1251 of 2022
                                      Hon'ble Manoj Kumar Tiwari, J.

Mr. Siddhartha Singh, Advocate for the petitioners.

Mr. M.S. Tyagi, Senior Advocate, assisted by Mr. Sunil Chandra, Advocate for respondent no. 11.

Heard learned counsel for the parties. Petitioners are aggrieved by an order dated 25.05.2022, passed by District Judge, Haridwar, in Civil Appeal No. 28 of 2022. By the said order, learned District Judge issued notice to unrepresented respondents in the Appeal.

It transpires that a suit for partition was filed by petitioners, which was numbered as Original Suit No. 107 of 2007. Although, there were as many as 15 defendants in the suit, however, suit was contested only by defendant nos. 8 to 13. The suit filed by petitioners was dismissed, vide judgment and decree dated 13.05.2022 rendered by learned Civil Judge (Senior Division), Haridwar.

Petitioners challenged the decree passed by learned trial Court by filing an appeal under Section 96 CPC. In the said appeal, petitioners also filed an interim relief application under Order 39 Rule 1 CPC.

Muntyaz Ali (respondent no. 11 herein) had filed a caveat, therefore, his counsel was present on 24.05.2022, when the appeal was taken up for admission. Thereafter, learned Appellate Court, vide order dated 25.05.2022 directed for issuance of notice on Temporary Injunction Application, to other defendants.

Learned counsel for petitioners submits that since Muntyaz Ali (respondent no. 11 herein) was represented through counsel before Appellate Court, therefore, there was no justification for Appellate Court to issue notice to other defendants. He further submits that since Muntyaz Ali is raising construction, thus, interim relief application was also directed against Muntyaz Ali, therefore, Appellate Court could have passed the interim order, restraining Muntyaz Ali from raising further construction, over the land in question.

This Court is not impressed by submission made on behalf of petitioners. Order 39 Rule 3 CPC ordains that before passing any order of temporary injunction, all the defendants/respondents have to be noticed and in case any ex-parte order has been passed, then reasons have to be recorded.

Since interim relief application, which petitioners sought before Appellate Court was directed against all the defendants to appeal, therefore, merely because Muntyaz Ali was present before Appellate Court, would not have been a sufficient ground for dispensing with the requirement of Order 39 Rule 3 CPC, as the interim relief application, as sought for, would have affected all the respondents.

Learned counsel for petitioners submits that since there was an order of temporary injunction granted by learned trial Court, operating till dismissal of the suit, therefore, Appellate Court ought to have passed similar order to preserve the property.

Per contra, Mr. M.S. Tyagi, learned senior counsel appearing for Muntyaz Ali (respondent no. 11 herein) submits that the land in question was purchased by Muntyaz Ali and other defendants on 05.12.1997, since they are not having any residential accommodation, therefore, they are raising construction thereupon.

Since interim relief application filed by petitioners is yet to be considered by Appellate Court, therefore, writ petition is disposed of with a request to Court concerned to consider and decide petitioners' interim relief application on the next date fixed, i.e. 13.07.2022. If it is not possible for any reason to dispose it of on the date fixed, then the same shall be disposed of on any other date, within four weeks thereafter.

Till disposal of interim relief application of petitioners, Muntyaz Ali may raise construction, however, such construction shall be raised by him, at his own risk and costs and he shall not claim any equity based on said construction.

With the aforesaid direction, the writ petition is disposed of. Let a certified copy of this order be issued by 13.06.2022.

(Manoj Kumar Tiwari, J.) 10.06.2022 Navin