Heard learned counsel for the petitioners, Sri Kaushalendra Nath Singh, learned counsel for the Respondent No.3, learned Standing Counsel for the State respondent and perused the record.
In view of the order proposed to be passed, notices need not go to the private respondents.
The petitioner has preferred the present petition under Article 227 of the Constitution of India to set aside the proceedings of the Original Suit No.818 of 2020 [Dev Prakash Pathak and another Vs. Prateek Infra Projects India (Ltd.)] pending in the Court of Civil Judge (S.D.), Gautam Buddh Nagar. A further prayer has been made to set aside the order dated 07.12.2020 passed on the application 6-C in Original Suit No.818 of 2020 filed by the plaintiffs in the aforesaid Original Suit.
Apart from various other arguments, one of the argument has been raised by learned counsel for the petitioners is that the injunction order granted by the Trial Court is absolutely perverse, illegal and more especially in view of the fact that the basic ingredients which are required for grant of interim injunction, as provided under Order 39 Rule 1 & 2 of the C.P.C., was not dealt with by the Trial Court. It is further argued that neither prima-facie case nor the balance of convenience or irreparable loss has been dealt with by the Trial Court before passing the order impugned. It is further argued that the plaintiffs have absolutely no concern with the property in dispute and collusive suit has been filed by him just in order to defeat.
Learned counsel for the petitioners have also relied upon the judgment of the Hon'ble Apex Court passed in the case of 'Kanwar Singh Saini Vs. High Court of Delhi, 2012(4) SCC 307'. In view of the matter it is argued that the order of status-quo granted by the Trial Court is liable to be set aside.
On the other hand, it is argued by Sri Kaushlendra Nath Singh, learned counsel appearing on behalf of the Respondent No.3 that the present petition under Article 227 of the Constitution of India is absolutely not maintainable especially in view of the fact that the order impugned is appealable as per the provisions contained under Order 43(1)(r) of C.P.C. It is further argued that the application filed by the petitioner under Order 7 Rule 11 of C.P.C. is still pending before the Trial Court.
With the consent of learned counsel for the parties and considering the facts and circumstances of the case and without expressing any opinion on the merits of the issue, the present petition stands disposed of finally with a direction to the court below to consider and decide the aforesaid application dated 10.01.2021 filed by the petitioner, a copy of which is appended as Annexure No.8 to this petition, in accordance with law most expeditiously and preferably on the next date fixed in the matter after hearing all the parties concerned. If on account of any reason no orders were passed on the aforesaid date, the decision will be taken on the aforesaid application preferably within a period of three weeks thereafter.
Order Date :- 18.2.2021 pks