Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 1118 of 2018 Petitioner :- Life Insurance Corporation Of India Respondent :- Yogendra Nath And 8 Others Counsel for Petitioner :- Prakash Padia
Hon'ble Manoj Kumar Gupta,J.
The instant petition has been filed for a direction to the appellate court where appeal no.2 of 2018 is pending, to decide the application for temporary injunction, paper No.6-Ga2 and in the meantime, direct the parties to maintain status quo.
The appeal has been filed by the petitioner challenging the judgement dated 8.12.2017 passed in Original Suit No.114 of 2000, by which the suit has been dismissed. Alongwith memo of appeal, the petitioner also filed an application under Order 39 Rule 1 and 2 read with Section 151 CPC, wherein it prayed that the respondents be restrained from raising constructions over the suit property till final disposal of the appeal. A perusal of order sheet reveals that on 8.1.2018, the appeal was admitted and notice was issued to opposite parties fixing 12.1.2018. On 12.1.2018, the opposite party no.1 to the appeal entered appearance through a counsel. However, the remaining opposite parties did not appear. Counsel for the petitioner has made a statement at the Bar that by order dated 21.2.2018, the trial court has permitted the petitioner to serve these opposite parties by publication in news paper. The order sheet also reveal that on 25.1.2018 the court fixed 7.2.2018 as date for hearing of appeal with the consent of parties who were represented before it.
Counsel for the petitioner submitted that during pendency of the suit, an order for temporary injunction was operating in favour of the petitioner. The aforesaid order was granted to the petitioner by this Court in Writ Petition No.32243 of 2004. It is urged that soon after the suit was dismissed, the defendant/respondents started raising boundary wall by dispossessing the petitioner from the land in dispute. In this regard a specific assertion has been made in para 22 of the petition. It is urged that when the appellate court admitted the appeal and had already fixed the matter for final hearing, it ought to have passed an order for preservation of the suit property by directing the parties to maintain status quo. However, on account of the fact that no order has been passed so far on the application for temporary injunction, the respondents are raising construction.
Having regard to the facts of the case and the submissions made, this Court is of the opinion that the property which was subject matter of appeal, should be directed to be preserved till the application for stay is taken up for consideration by the appellate court.
Accordingly, the petition is disposed of by directing the appellate court to decide the injunction application soon after service on the remaining opposite parties is sufficient.
Till the disposal of application for temporary injunction, the parties shall maintain status quo and no construction shall be raised over the suit property.
(Manoj Kumar Gupta, J.) Order Date :- 27.2.2018 skv