Court No. - 58
Case :- FIRST APPEAL FROM ORDER No. - 3960 of 2018 Appellant :- Smt. Poonam Mehra Respondent :- Sunil Bhalla And 5 Others Counsel for Appellant :- Ashutosh Sharma Counsel for Respondent :- Satish Chaturvedi
Hon'ble Ashwani Kumar Mishra,J.
This Misc. Appeal is directed against the order passed by the Additional Civil Judge (Sr. Div.), Court No.9, Kanpur Nagar dated 17.7.2018 in Original Suit No. 1007 of 2017. Trial Court after hearing the parties has restrained the defendants from operating bank accounts and FDRs in question.
A short narration of facts, giving rise to the controversy would suffice. The present appellant, who has subsequently been impleaded as defendant no. 4 in the suit is the real sister of the plaintiff. Parties are litigating in respect of the estate left behind by their parents. Probate proceedings have already been instituted on the basis of an unregistered Will, which is pending before the District Judge, Kanpur Nagar in Probate Petition No. 68/70 of 2013. It is asserted that appropriate interim applications filed in the probate petition are also pending consideration. It is at this stage that the suit for injunction has been filed in which the order impugned has been passed.
Learned counsel for the defendant-appellant submits that once the probate petition is pending and contest has been put forth by the defendant-appellant, the filing of the subsequent suit itself is not maintainable.
Submission is opposed by Sri P.K. Srivastava, learned counsel appearing on behalf of the respondent-State Bank of India.
Issue relating to maintainability of second suit is urged before this Court for challenging the grant of injunction in the suit. In case filing of the suit itself is questioned on the ground of maintainability, the appropriate course open to the defendant would be to move an appropriate application before the trial court itself where all such issues of fact can be examined after hearing the parties. There is otherwise no serious challenge to the grant of injunction inasmuch as the object of injunction appears to be to protect the lis pending before the Court itself. The objection of appellant is only to the extent of maintainability of the second suit.
In the facts and circumstances of the case, it would be appropriate to dispose of this appeal by observing that in case an appropriate application is filed by the defendant-appellant, questioning the maintainability of the suit on the grounds available in law, the same shall be dealt with by the Court concerned, expeditiously.
Subject to the observations made above, this appeal stands disposed of.
Order Date :- 26.10.2018 n.u.