Court No. - 18
Case :- MATTERS UNDER ARTICLE 227 No. - 5894 of 2018 Petitioner :- Azimuddin and another Respondent :- Muzibun Nisha and 4 others Counsel for Petitioner :- Aijaz Ahmad Khan,Raj Kumar Kesari
Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the defendants-petitioners.
The petitioners are before this Court assailing the order dated 15.3.2018 passed by Civil Judge (Junior Division), Ghazipur in Original Suit No.317 of 2017 (Muzibun Nisha vs. Azimuddin and another) and the order dated 25.5.2018 passed by the District Judge, Ghazipur in Misc. Civil Appeal No.16 of 2018 (Azimuddin and another vs. Muzibun Nisha and others).
Record in question reflects that the plaintiff-respondent no.1 filed the Original Suit No.317 of 2017 for permanent injunction in which an application for grant of temporary injunction had been moved under Order 39 Rule 1 of C.P.C. registered as paper 6-Ga. By the order dated 15.3.2018, the Civil Judge (Junior Division), Ghazipur, had allowed the same. Aggrieved by the same, the defendants-petitioners filed an appeal bearing Misc. Civil Appeal No.16 of 2018 and the District Judge, Ghazipur has dismissed Misc. Civil Appeal No.16 of 2018 but partly allowed the application (6C) to the effect that the appellants-defendants shall not transfer/alienate the disputed property during the pendency of the aforesaid suit.
Learned counsel for the defendants-petitioners submits that the aforesaid suit was filed by the sister of the defendants-petitioners for permanent injunction on the basis of oral Hiba signed by her father on 17.8.1980 wherein one-third of the entire property of her father was given to her. The claim of the plaintiff was limited to Arazi Nos.844, 908-Ka, 908-Kha and the said property was of her father, whereas the rest of the properties were purchased by the petitioners. The petitioners filed objection to the application under Order 39 Rule 1 of C.P.C. stating that the provisions of U.P. ZA & L.R. Act will not be applicable after coming into force of U.P. Revenue Code, 2006. The claim of the plaintiff with regard to the agricultural property is not maintainable on the ground that Section 206 of U.P. Revenue Code, 2006 provides that the Civil Court has no jurisdiction to entertain any suit, application or proceedings to obtain a decision or order on any matter which the State Government, the Board, any Revenue Court or Revenue Officer is, by or under this Code, empowered to determine, decide or dispose of. The objection of the petitioners was not considered by the trial court while passing the impugned order dated 15.3.2018 wherein the application 6C had been allowed and the parties were directed to maintain status quo relating to the disputed properties till disposal of the suit. The said order was assailed by the petitioners in the civil appeal but the lower appellate Court without considering the objections of the petitioners dismissed the civil appeal on 25.5.2018. The lower appellate Court has also not considered the objection of the petitioners regarding maintainability of the suit before the Civil Court after coming into force of U.P. Revenue Code, 2006. In support of his submission, he has placed reliance on the judgement of this Court in Narayan Dass Agarwal and others vs. Sita Ram and others reported in 2014 (125) RD 379.
After hearing learned counsel for the defendants- petitioners and going through the records, the court finds that the trial court has clearly proceeded to observe that so far as the claim set up by the plaintiff-respondent is concerned, all the three important conditions for the grant of temporary or interim injunction i.e., (i) Prima Facie Case; (ii) Balance of Convenience; and (iii) Irreparable Injury, were considered and they were found in favour of the plaintiff-respondent. Consequently, the trial court allowed the application (6C) on 15.3.2018 directing the parties to maintain status quo till disposal of the case. By the impugned order dated 25.5.2018, the lower appellate court has dismissed the appeal filed by the petitioners against the order dated 15.3.2018 but the lower appellate court has modified the interim order passed by the trial court to the effect that the defendants-petitioners shall not create any third party interest in the suit property.
In Manohar Lal Chopra v. Rai Bhaadur Rao Raja Seth Hiralal (AIR 1962 SC 527) it was held that the Court has inherent jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of Order XXXIX of the Code of Civil Procedure. No party has a right to insist on the Court's exercising that jurisdiction. Inherent jurisdiction can be exercised by the Court only when it considers it absolutely necessary for the ends of justice to do so.
In the case of Kashi Math Samasthan & Anr. Vs. Shrimad Sudhindra Thirtha Swamy & Anr. AIR 2010 SC 296, the Supreme Court held:-
"13. It is well settled that in order to obtain an order of injunction, the party who seek for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted. Therefore, keeping this principle in mind, let us now see whether the appellant has been able to prove prima facie case to get an order of injunction during the pendency of the two appeals in the High Court."
In the case of Gujarat Bottling Co. Ltd. & Ors. v. Coca Cola Co. & Ors. AIR 1995 SC 2372, the Supreme Court elaborately discussed the scope and object of Order XXXIX Rule 1 and 2. Their Lordships held:-
"46. The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the court. While exercising the discretion the court applies the following tests- (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the "balance of convenience" lies. [See: Wander Ltd. v. Antox India (P) Ltd. (1990 Supp. SCC 727) In view of the aforesaid facts as well as reasoning given by the court below while allowing the application (6C) moved by the plaintiff-respondent and dismissing the appeal preferred by the petitioners, I do not find any illegality or infirmity in the impugned orders under challenge in the present writ petition at this stage. However, the defendants-petitioners can very well take all the objections so raised before this Court by adducing evidence in the trial court.
For the foregoing reasons, the writ petition lacks merit and is dismissed.
Order Date :- 20.8.2018 RKP