Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 1177 of 2018 Petitioner :- Chandani Gupta Respondent :- District Judge Firozabad And 02 Others Counsel for Petitioner :- Manish Chandra Tiwari,Nrapendra Kumar Chaturvedi
Hon'ble Manoj Kumar Gupta,J.
The instant petition has been filed challenging order dated 10.3.2017, whereby the trial Court has rejected an application 73Ga filed by the petitioner, who is defendant in Original Suit No. 334/2010. By the said application, the petitioner prayed for striking of issue No. 1, which was to the following effect : -
"Whether plaintiffs are owner of the suit property."
The petitioner also prayed that after striking of the said issue, another issue be reframed in its place in terms of Section 6 of the Specific Relief Act, 1963, as to whether the plaintiffs were dispossessed without following the procedure prescribed by law and whether they were entitled to restoration of possession. The trial Court has rejected the application by holding that issue was framed on basis of pleadings of the parties. The plaintiffs had specifically pleaded their title to the suit property and according to them, the suit was not based on possession, but upon their title. It has further been observed that the suit is pending at the stage of final hearing. Accordingly, the prayer made in the application was not found to be bona fide and the application has been rejected. The order of the trial Court was challenged in revision. The Revisional Court has dismissed the revision by impugned order dated 30.11.2017. The Revisional Court has observed that the suit is for mandatory injunction, and according to the plaintiffs, the same has been filed under Section 39 of the Specific Relief Act and not under Section 6 of the Specific Relief Act.
Counsel for the petitioner submitted that the plaintiffs have alleged that they had been dispossessed from the suit property and thus, the suit was under Section 6 of the Specific Relief Act. However, this Court is unable to accept the contention of the learned counsel for the petitioner. A bare perusal of the assertions made in the plaint would show that the plaintiffs have brought the suit on the basis of their title vide sale deed dated 20.2.2010. It was the specific stand of the plaintiffs before the Courts below that the suit was for mandatory injunction and had been instituted under Section 39 of the Act. Section 6(4) itself protects such a right. In such view of the matter, this Court does not find any illegality in the impugned orders.
The petition lacks merit and is dismissed.
(Manoj Kumar Gupta, J.) Order Date :- 26.2.2018 AM/-