Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 1444 of 2017 Petitioner :- Kray Vikray Sahkari Samiti Ltd. Respondent :- Nagar Panchayat Uska Bazar Counsel for Petitioner :- Tripathi B.G. Bhai Hon'ble Manoj Kumar Gupta,J.
The petitioner has challenged the order dated 15.2.2016, whereby application for temporary injunction filed by the petitioner in Original Suit No.415 of 2014 was rejected as well as the order dated 5.1.2017 passed by the appellate court dismissing the appeal.
The petitioner claimed that an agreement dated 20.5.2005 was executed by the erst while Pradhan of then Gaon Sabha whereunder it was given right to construct Haat and hold Penth over the suit land. The Nagar Panchayat is interfering in its right by seeking to construct its office over it. The trial court has rejected the injunction application holding that the Nagar Panchayat in whose management the suit land comes is constructing its officer over the same in pursuance of order of District Magistrate, Siddharth Nagar dated 27.3.2015. It has been held that the constructions are being made by the defendant to subserve the public purpose. The alleged agreement in favour of the petitioner does not create any indefeasible right in its favour so as to restrain the defendant from exercising its right over the suit property. The appellate court, apart from upholding the reasonings given by the trial court, has dismissed the appeal on an additional ground that another suit being Original Suit No.405 of 2014 was instituted by one Sant Ram representing the plaintiff Society, against the same defendant, in respect of the same land. In the said suit, an application for temporary injunction was also filed, but it came to be rejected by order dated 3.7.2015. The court has held that prima facie the suit instituted by the Society now through another member Amar Nath Agrahari falls within the ambit of Section 10 CPC. Yet another finding to the effect that before institution of the suit, notice under Section 326 of the Uttar Pradesh Nagar Palika Adhiniyam, 1916 was not given by the petitioner has also been recorded.
Counsel for the petitioner is not able to dispute that Sant Ram had earlier instituted a suit representing the Society wherein an application for temporary injunction filed by him was rejected.
In the opinion of the Court, institution of subsequent suit, in fact, amounts to gross abuse of the process of law. There was no prima facie case in favour of the petitioner and in fact, as observed above, the institution of the subsequent suit was wholly malafide. This Court, therefore, does not find any illegality in the impugned orders. The petition lacks merit and is dismissed.
(Manoj Kumar Gupta, J) Order Date :- 23.2.2018 SL