Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 9280 of 2019
Petitioner :- Smt. Bhagwan Devi And 02 Others
Respondent :- Smt. Ramdulari And 14 Others
Counsel for Petitioner :- Om Prakash Mishra,Vinod Kumar Ojha Counsel for Respondent :- C.S.C.,Ashish Kumar Srivastava,Rakesh Kumar Srivastava
Hon'ble Siddhartha Varma,J.
In a suit for permanent injunction filed by the plaintiffs/petitioners, the defendants had put in appearance.
When the application for temporary injunction filed by the plaintiffs/petitioners was not being decided, the instant application under Article 227 of the constitution of India was filed.
When the case was being heard as a fresh case the defendants Abhishek Gupta who was respondent no. 8 in the instant petition appeared through Sri Ashish Kumar Srivastava and Sri Rakesh Kumar Srivastava.
The counsel for the respondents opposed the petition and stated that since the defendants were raising a certain question of jurisdiction and had wanted that the plaint be rejected under Order VII Rule 11 of the C.P.C., the application under Order VII Rule 11 C.P.C. be decided prior in point of time and, therefore, the application for temporary injunction is decided.
Learned counsel for the respondents relied upon a judgement reported in 2017 (134) RD 346 (Rakesh Kumar Singh & Ors vs. Civil Judge Junior Division Kaiserganj Bahraich & ors) and specifically relied upon paragraph 9 of the judgement which reads as under:-
"9. Considering the peculiar facts and circumstances of the case, it is provided that if the application for temporary injunction filed under Order 39 Rules 1 and 2 of the C.P.C. has not been decided till date, the Civil Judge, Junior Division, Kaiserganj, Bahraich will examine and decide application filed by the petitioners under Order 7, Rule 11 CPC prior to deciding the application for temporary injunction under Order 39 Rule 1 and 2 of the C.P.C., in accordance with law, after due opportunity of hearing to the parties concerned."
Relying upon the above paragraph the learned counsel for the respondents submitted that the application under Order VII Rule 11 of the C.P.C. be decided earlier in point of time.
However, learned counsel for the petitioner relied upon a judgement reported in 1997 (SC) 1240 (Tayabbhai M. Bagasarwalla and another v. Hind Rubber Industries Pvt. Ltd. etc.) and relied upon paragraph 29 of the judgement which reads as under:-
"29.The correct principle, therefore, is the one recognised and reiterated in Section 9-A - to wit, where an objection to jurisdiction of a civil court is raised to entertain a suit and to pass any interim orders therein, the Court should decide the question of jurisdiction in the first instance but that does not mean that pending the decision on the question of jurisdiction, the Court has no jurisdiction to pass interim orders as may be called for in the facts and circumstances of the case. A mere objection to jurisdiction does not instantly disable the court from passing any interim orders. It can yet pass appropriate orders. At the same time, it should also decide the question of jurisdiction at the earliest possible time. The interim orders so passed are orders within jurisdiction when passed and effective till the court decides that it has no jurisdiction to entertain the suit. These interim orders undoubtedly come to an end with the decision that this Court had no jurisdiction. It is open to the court to modify these orders while holding that it has no jurisdiction to try the suit. Indeed, in certain situation, it would be its duty to modify such orders or make appropriate directions. For example, take a case, where a party has been dispossessed from the suit property by appointing a receiver or otherwise; in such a case, the court should, while holding that it has no jurisdiction to entertain the suit, must put back the party in the position he was on the date of suit. But this power or obligation has nothing to do with the proposition that while in force, these orders have to be obeyed and their violation can be punished even after the question of jurisdiction is decided against the plaintiff provided the violation is committed before the decision of the court on the question of Jurisdiction. "
Having heard the learned counsel for the petitioners and the counsel appearing for the respondents, I am of the view that no useful purpose would be served by keeping the instant petition pending. The court below as per the judgement reported in 1997 (SC) 1240 shall now make an endeavour to decide the application for temporary injunction within a period of two weeks from the date of production of certified copy of this order.
The question of jurisdiction alongwith the application under Order VII Rule 11 of the C.P.C. if has been filed, would be, thereafter, decided within a period of 10 days.
With the above observation, the writ petition is disposed of.
Order Date :- 18.12.2019 PK