Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 6850 of 2019 Petitioner :- Abdul Hai Respondent :- The Sub Divisional Officer And 4 Others Counsel for Petitioner :- Prakash Chandra Gupta,Vishal Khandelwal Counsel for Respondent :- C.S.C.
Hon'ble Manoj Kumar Gupta,J.
A supplementary affidavit has been filed in compliance of order dated 26.9.2019. Alongwith the supplementary affidavit, a questionnaire issued by the court below has been filed which reveals that notice on defendants no.1 and 2 has been duly served, while defendant no.3 has refused to accept the summons.
The prayer made in the instant petition is for issuing direction to the court below to decide the application for temporary injunction dated 11.5.2018 in Original Suit No.112 of 2018 instituted by the petitioner against the defendant-respondents within a specified time and till then, the respondents be restrained from demolishing the petitioner's construction over the disputed property.
Indisputably, the suit has been filed against the State and its instrumentality without giving notice under Section 80 CPC. In such circumstances, even if notice under Section 80 CPC has been waived by the trial court, it could not grant any injunction without hearing the defendants.
As noted above, the defendants are stated to have been served.
Counsel for the petitioner points out that at the present moment, the court is lying vacant, therefore, the injunction application is not being decided.
Having regard to the entire facts of the case and the submissions made, the instant petition is disposed of as follows:-
(a) It shall be open to the petitioner to apply for transfer of the suit by filing appropriate application before the District Judge to some other court of competent jurisdiction.
(b) In case the transfer application is allowed, the transferee court shall proceed to decide the application for temporary injunction after verifying that the service has been effected upon the defendants.
(c) The transferee court shall make endeavour to decide the injunction application within twelve weeks.
(Manoj Kumar Gupta, J) Order Date :- 30.9.2019 SL