Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 3125 of 2019 Petitioner :- Mahfooz Alam And 4 Others Respondent :- Civil Judge (S.D.) Chandauli And 3 Others Counsel for Petitioner :- Ashish Kumar Srivastava
Hon'ble Saurabh Shyam Shamshery,J.
Sri Ashish Kumar Srivastava, learned counsel appearing for the petitioners submits that the petitioners had filed OS No 414 of 2018 Mafooz Alam and others Vs Sahahna Begam and others, seeking declaration of sale deed dated 29.10.2018 as void. Along-with prayer for permanent injunction, the petitioner also filed an Application 7C for interim relief during the pendency of the application for temporary injunction 6 C. The suit was fixed for 28.11.2018 when notice was issued to the defendants. However, no temporary injunction was granted. The respondents/Defendants appeared on 29.1.2019. However, the matter is still at the stage of arguments for the purposes of deciding the Application 7C.
On instructions, the learned counsel submits that next date fixed in the case is 10.8.2019 The learned counsel submits that there was a compromise between the parties which was also acted upon so much so that a decree was passed in terms of the compromise. However, the respondents/defendants have acted contrary to the compromise decree by executing sale deed. The petitioners have specifically mentioned in paras 32,33 and 34 of the writ petition as under:
"32. That the petitioners/plaintiffs are in actual physical possession and their crop is standing over the land in question hence balance of convenience also lies in their favour. respondent 2nd set has been threatening petitioners/plaintiffs on a regular basis that he would reap the crop sown over the land in question. If respondnet no 4 forcefully and illegally dispossesses plaintiffs/petitioners from the land in question then they would suffer irreparable loss and injury.
33. That defendants/respondents deliberately did not file their objection on 4.4.2019 when the matter was lastly listed. Hnece 18.4.2019 has been fixed as the next date. The trial court has overlooked the conductof defendants where they not only committed an illegal act but also trying to linger on with the disposal of injunction application 7C.
34. That in view of the aforesaid facts and circumstances, it is expedient in the interest of justice that this HOn'ble Court may very graciously be pleased to restrain respondent no 2 to 4 from illegally dispossessing plaintiffs/petitioners or creating hindrance in peaceful possession of the petitioners over the land which is subject matter of the suit in question in any manner during the pendency of this petition or till the disposal of application No 7C for grant of temporary injunction filed in OS No 414 of 2018 Mahfooz Alam and others Vs Sahana Begam and others pending in the court of Civil Judge (SD) Chandauli, under Article 227 of the Constitution of India invoking extraordinary supervisory jurisdiction as or otherwise the petitioners/plaintiffs would suffer irreparable loss and injury."
In order to further substantiate his submissions, the learned counsel for the petitioner placed reliance on a judgment of Division Bench of this Court in Ram Dhani and others Vs Raja Ram and others {2011 (5) ADJ 780 (DB) } and submitted that in the circumstances in hand, the powers under Article 227 can be exercised in order to protect the suit property. For that, the learned counsel placed reliance on para 20 of the said judgment.
"20. From the discussion above, for an order to be revisable under Section 115 C.P.C., as is applicable in the State of U.P., firstly it must be an order which must decide a part of the case or the proceedings. The expression ''order' as it is defined in the C.P.C., requires determination which must bring finality by determining the rights of the parties in respect of the controversy in the application. Order 39 Rule 3 is a duty conferred on the Court before granting an injunction to issue notice to the party. It is a procedural provision, a step in the case. The Court, in the event, arrives at a conclusion that the grant of ex parte injunction would be defeated by delay, can in the case of urgency proceed to grant an injunction under Order 39 Rule 1 or Order 39 Rule 2. If the injunction is granted or rejected, as observed earlier, it would be appealable under Order 43. The procedure followed under Order 39 Rule 3 is determination by the Court of the urgency of the matter vis-à-vis the relief claimed by the plaintiff. On a failure to grant the injunction, no part of the case or the proceeding is disposed of, but the proceedings merely stand adjourned to the next date. In other words a step in the case or proceedings. In these circumstances, in our opinion, it cannot be said that, by merely issuing notice on arriving at a finding that there is no urgency, the same amounts to an ''order' within the meaning of Section 2 (14) C.P.C. In that context, the question of applying Rule 3 (ii) of Section 115 would not come into play. That can only be applicable if the other precondition of 'an order deciding the case' are satisfied. Therefore, merely issuing a notice on arriving at a conclusion that there is no urgency would not be an order which is revisible. It is not, as if a party is without a remedy if such a view is taken. The extraordinary jurisdiction of this Court under Article 227 of the Constitution of India would always be available in such a case."
Considered the submissions and perused the record.
While considering the Application for grant of injunction, the court has to apply the urgency in the matter which can result either in granting injunction or issue of injunction. However, in the present case, simply notice has been issued without considering the urgency as the sale deed dated 30.10.2018 has already been executed and it is very likely that it may be acted upon and the possession of the suit property may be disturbed.
Considering the submissions, the trial court is directed to decide the Application 7 C at the earliest preferably on the next date fixed for hearing. Till then status quo as on date shall be maintained by the parties.
The status quo order is only for the purpose of deciding the Application 7C which is pending before the learned trial court and the learned trial court shall take decision without being influenced by this order.
In terms of the above, the petition shall stand disposed of.
Order Date :- 30.4.2019 MH