Unknown vs Bholu And Others
2023 Latest Caselaw 2538 UK

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                                  WPMS No.2267 of 2023
                                  Hon'ble Sharad Kumar Sharma, J.

Mr. Navam Mehrotra, Advocate, for the petitioner.

A very peculiar situation has arisen, where the present petitioner, who is the successor of the principal plaintiff, had instituted a Suit, being Suit No. 110 of 2020, Jarifan Vs. Bholu and others, for the grant of decree of the permanent injunction, thereby restraining the respondent not to alienate ½ of the share of the property.

In the suit in question, the respondent had filed a written statement, along with Order 8 Rule 6-A, raising a counter claim before the learned Trial Court, which was supported with application under Order 39 Rules 1 and 2 of the CPC.

The learned Trial Court, while considering the application under Order 39 Rules 1 and 2, had passed the following orders :-

"okfnuh dk izkFkZuki= okLrs vLFkkbZ fu'ks/kkKk dkxt la[;k&7Xk [kkfjt fd;k tkrk gSA izfroknhx.k dk vLFkkbZ fu'ks/kkKk izkFkZuki= dkxt la[;k 24x okfnuh ds fo:} Lohdkj fd;k tkrk gS rFkk okfnuh dks nkSjkus okn vLFkkbZ :i ls fuf'k} fd;k tkrk gS fd og iz"uxr lEifRr esa izfroknhx.k ds dCts o bLrseky esa fdlh izdkj dk gLr{ksi u djsa o djkosA i=koyh fnuakd 07-12-2020 dks izfroknh la[;k&3 ds tokcnkok gsrq is"k gksA"

As a consequence of the order dated 7th November, 2020, the application under Order 39 Rules 1 and 2, preferred by the plaintiff / petitioner with the suit, herein, was rejected. While the application preferred under Order 39 Rule 1 and 2, being paper No.24-Ga by the defendant, in the counter claim, which is a suit in itself, under Order 8 Rule 6-A (4), was granted.

The grant of injunction to the defendant in a counter claim under Order 8 Rule 6-A, was not challenged by the petitioner by filing an appeal under Order 43 Rule 1 (r) of the CPC.

What he has confined, is to a challenge given by him to the rejection of his application under Order 39 Rules 1 and 2 by filing a Misc. Civil Appeal No. 41 of 2020, Jarifan Vs. Bholu and others, which too, has been dismissed by the Appellate Court by an order dated 10th January, 2023.

Since there is a concurrent rejection of an application under Order 39 Rule 1 and 2 of the plaintiff / petitioner in Suit No. 110 of 2022, in a Writ jurisdiction under Article 227 of the Constitution of India, that has got a very limited scope of interference in the light of the Full Bench judgment of Allahabad High Court, as reported in AIR 1991 Allahabad (FB) 114, Ganga Saran Vs. Civil Judge, Hapur, Ghaziabad and others.

But still, even if that is to be overlooked, then too, this Court, cannot consider, the aspect of grant of injunction to the plaintiff / petitioner for the reason being, that the embargo of an order dated 7th November, 2020, would come into play, where the defendant has already been granted a temporary injunction and which has not been put to challenge by the petitioner by filing of an independent misc. appeal under Order 43 Rule 1 (r) of the CPC.

In these situations, granting of any injunction will be in contradiction to the injunction order of 7th November, 2020, granted in a proceeding under Order 8 Rule 6A, which is an independent plaint, not challenged.

While dismissing this Writ Petition, it will be open for the petitioner to put a challenge to the injunction order granted in favour of the defendant in the proceeding drawn by him under Order 8 Rule 6A of the CPC, before the Court of Civil Judge, Senior Division.

Subject to the aforesaid, the Writ Petition stands dismissed.

(Sharad Kumar Sharma, J.) Dated 28.08.2023 Shiv