Heard Sri Saurabh Raj Srivastava, learned counsel for the plaintiff-petitioner and Sri Girijesh Tiwari, learned counsel for the respondent no.1.
On 28.7.2020 following order was in this petition on the stay application :-
"(Order on Stay Application) Issue notice, returnable on August 28, 2020.
Meanwhile, the respondents are restrained from demolishing any part of the suit property or evicting the petitioner and both parties shall maintain status quo regarding possession, nature and character of the suit property.
(Order on Exemption Application) The exemption application is allowed in part.
Learned counsel for the petitioner shall bring on record a certified copy of the impugned order dated 30.05.2020 by the next date fixed.
Let a copy of this order be communicated to each of the private-respondents along with the notice that is sent by the office."
The petitioner has preferred present petition with the prayer to set aside/quash the order dated 30.5.2020 passed by the Civil Judge (Senior Division), Allahabad in Original Suit No.106 of 2020 (Navin Kumar Savant Vs. Prabhu Nath Mishra & 4 others).
The facts in brief as contained in the petition are that the property in question namely house no.745/560, Mumfordganj, Pargana & Tehsil, Sadar Allahabad City, District Allahabad, which is a dwelling house jointly owned by the petitioner and respondents no.2 to 4. A suit was preferred by the plaintiff-petitioner in the court of Civil Judge (Senior Division), Allahabad, being Original Suit No.106 of 2020 with relief of permanent injunction against defendant/respondent no.1, Prabhu Nath Mishra, who is totally a stranger to the suit property and a relief of mandatory injunction against defendant/respondent nos.2 to 5 (family members). In the application for grant of interim protection the court below passed an order on 30.5.2020 by which the notices were issued to the defendant in the suit and matter was fixed for disposal of the interim injunction application on 06.08.2020. Aggrieved against the aforesaid order, petitioner has preferred the present petition with the prayer as stated above.
It is argued by learned counsel for the petitioner that the trial court passed the aforesaid order without appreciating the voluminous documents annexed by the plaintiff-petitioner in support of his injunction application. It is further argued that order passed by the trial court is illegal in nature.
On the other hand counter affidavit has been filed by Sri Girijesh Tiwari, Advocate, on behalf of respondent no.1. It is argued by him that since only the notices were issued to the defendant in the suit as such present petition under Article 227 of the Constitution of India is not maintainable before this Court. A further arguments has been raised that the order impugned is appellable as provided under Order 43 Rule 1 (r) of the Code of Civil Procedure.
A rejoinder affidavit to the aforesaid counter affidavit has also been filed by Sri Saurabh Raj Srivastava, counsel for the petitioner.
After some arguments counsel for the parties are agreed that the direction be given to the court below to decide the injunction application on merits expeditiously and till the time injunction application is decided the interim protection granted by this Court be continued.
Heard learned counsel for the parties and perused the record.
Considering the facts and circumstances of the case, without expressing any opinion on the merits of the issue, the present petition stands disposed of finally with a direction to the concerned court below to consider and decide the injunction application finally strictly in accordance with law expeditiously and preferably within a period of three months from today but certainly after giving opportunity to the parties concerned and without granting unnecessary adjournments to either of the parties Till 15th May, 2021 or till time decision is taken by the court below, the interim order granted by this Court will continue.
Order Date :- 1.2.2021 Pramod Tripathi