(1) Heard Shri Syed Waqar Hussain, assisted by Shri Salman Abbas, learned counsel appearing for the petitioner and learned Standing Counsel appearing for the State and perused the record.
(2) This petition has been filed by the petitioner praying for a direction to be issued to the learned Civil Judge (Junior Division), Mohammadi Kheri, to decide the Regular Suit No.165 of 2019 (Amina Begam Vs. Wakil Khan & Others) within the stipulated period of time as speaks by the Court.
(3) During the course of the arguments, learned counsel for the petitioner says that a Regular Suit was filed by the petitioner for permanent injunction alongwith an application for temporary injunction with regard to Gata No.155 admeasuring 1.32 Acre and Gata No.240 admeasuring 0.267 Hectare which was sold off by the father of the defendants to the petitioner in 1985. The petitioner made some construction on the said land and has been living therein alongwith family members. When obstruction was caused in her peaceful possession, the petitioner filed a Regular Suit as aforesaid on 27.08.2019 alongwith an application for temporary injunction number as 8-Ga-2 on which learned Trial Court issued summons and directed that the written statements be filed by the defendants by 27.09.2019 and fixed a date i.e. 04.10.2019 for framing of issues. The Application Paper No.8-Ga-2 alongwith affidavit filed in support thereof Paper no.9-Ga-2 for temporary injunction was not considered at the time of initial filing of the case as it was the opinion of the learned Trial Court that the respondents should be heard before such temporary injunction application can be allowed. The date was fixed for 16.09.2019 for filing and disposal of objections to the temporary injunction application.
(4) It has been submitted by the learned counsel for the petitioner, on the basis of a judgment and order passed by this Court in Writ Petition No.30328 (M/S) of 2019 (Shyam Sundar Rastogi Vs. Civil Judge (J.D.), Sitapur and Others) that this matter be disposed of on similar terms with a direction to the learned Trial Court to consider and decide the Application at the earliest say by the next date fixed.
(5) It is the specific case of the petitioner that part of the aforesaid two Gatas of land namely Gata No.155 and Gata No.240 was sold off by Shri Fidrat Ali, the father of the defendants to the petitioner on 16.01.1985. She is in possession of only that portion which has been sold off to her but the defendants are creating disturbance in her peaceful possession.
(6) Learned counsel for the petitioner submits that in the affidavit filed alongwith application for temporary injunction marked as Paper No.9-Ga-2 all documentary evidence with regard to the petitioners lawful possession over the property in question including recording of a name in the Khatauni of the village concerned was filed. A prima facie case was made out for giving ad interim injunction but the learned Trial Court has merely posted the matter for hearing on the application for temporary injunction after objections are filed by the defendants. In the Judgement relied upon by the learned counsel for the petitioner in Shyam Sundar Rastogi (Supra), this Court had disposed of the petition by referring to an order 39 Rule 1 of the CPC.
(7) The relevant extract of which is being quoted hereinbelow:-
"The petitioner filed an application for temporary injunction under Order 39 Rule 1 & 2 of the Code of the Civil Procedure which has been numbered as Application No. 6Ga2. Although notices have been issued to the defendants to inviting their objections on the Application No. 6Ga2 and fixing a date for decision/ disposal on 30.09.2019. The defendants have failed to appear and next date fixed was 18.10.2019. Now a date has been fixed as 07.11.2019 as the defendants continue their action before the learned Trial Court.
(5) In the absence of the defendants, learned Trial Court is not deciding the Application No. 6Ga2.
(6) Learned counsel for the petitioner has pointed out the Order 39 Rule 1 of the CPC which is as follows:- Where in any suit it is proved by affidavit or otherwise?
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors, [(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,] the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders."
(7) The language of the Sections clearly gives discretion to the learned Trial Court to pass order even ex-parte for maintenance of the status-quo till disposal of the application for interim injunction. In this case, neither the discretion has been exercised by the learned Trial Court by issuing an order for maintenance of status-quo nor the Application No.6GA2 has been decided, despite at least three dates having been fixed for the defendants to put in appearance.
(8) Learned counsel for the petitioner has placed reliance upon a judgment of Co-ordinate Bench of this Court in Birjendra Singh and Others Vs. Civil Judge (Junior Division), Haveli, Faizabad, reported in 2012 (30) LCD 1973 and Paragraph nos. 9 & 15 which are being quoted hereinbelow:-
"9. The learned Trial Court has not decided the interim injunction application, which is pending for the last five months. Service or no service upon the defendants, justice is paramount, if any mischievous litigant obtains interim injunction, it can well be vacated any moment, but due to that mischievous litigant, the battery of litigants should not be allowed to suffer. This is the mandate of the Constitution of India.
15. Underneath there is a current in the society that the Subordinate Courts are not granting ex-parte injunction, in civil matters as a matter of determination. This impression is suicidal to the justice delivery system. The Courts are expected to ensure that this impression is vanished before it bite the Constitutional machinery. The interim relief should be denied or delayed only if mischief is apparent or the Trial Court is convinced that the matter is not of urgent nature or there is no emergent situation."
(8) This petition is finally disposed of with a direction to the learned Trial Court to consider and decide the Application No. 8-Ga-2 at the earliest say by the next date fixed or soon thereafter to prevent the dispossession of the petitioner from the property in question which may lead to multiplicity in litigation.
(9) Till the disposal of the Application No.8Ga-2 or till its objections are filed by the defendants whichever is earlier, this Court directs maintenance of Status-quo by the parties to the Suit on the property in question.
Order Date :- 28.11.2019 PAL