Court No. - 13
Case :- MATTERS UNDER ARTICLE 227 No. - 3114 of 2019 Petitioner :- Subash Tiwari Respondent :- Dhananjay Tiwari And Another Counsel for Petitioner :- Nilam Shukla,Surnedra Prasad Shukla Counsel for Respondent :- Pankaj Kumar Gupta
Hon'ble Saurabh Shyam Shamshery,J.
Heard Sri S.P.Shukla learned counsel for the petitioner and Sri Pankaj Gupta who is appearing for Sri Dhananjai Tiwari, caveator.
Sri S.P.Shukla learned counsel for the petitioner submits that the petitioner is one of the defendants in suit No 613 of 2019 (Dhananjai Tiwari etc vs Subhash Tiwari etc) pending before the Civil Judge (J.D) Room No 10 Deoria.
The learned counsel submits that the learned court below vide its order dated 29.3.2019 granted time to file objection to the petitioner/defendant vis a vis Application No 6 C for interim injunction and 28.4.2019 was fixed. The court below did not grant any interim order in the meanwhile. The respondent/plaintiff herein filed an appeal No 13 of 2019 (Dhananjai Tiwari and another vs Subhash Tiwari and others ) before the District Judge Deoria challenging the order dated 29.3.2019. The learned appellate Court by the impugned order dated 3.4.2019 admitted the appeal and issued notice to the Opp party therein (petitioner/defendant) and fixed 2.5.2019 as the next date. However, meanwhile, order was passed to maintain status quo during the pendency of the appeal.
The learned counsel for the petitioner submits that the stay order is bereft of any reasoning and therefore is liable to be set aside.
Per contra, Sri Pankaj Gupta, learned counsel for the respondent Caveator submits that appeal was filed as there was imminent lurking fear that the defendant in the suit may disturb the nature of the land. By this reckoning, it is submitted, the impugned order was rightly passed.
Considered the submissions made across the bar and perused the record.
The learned trial court vide order dated 29.3.2019 has only granted time to the defendant therein to file objection against the application 6 C which in my opinion, is the correct procedure. However,lthe appellate court without considering the facts and without assigning any reason, on one hand, admitted the appeal and, on the other hand, passed the interim order, which is not countenanced by any reasoning. Therefore, the impugned stay order is liable to be set aside and is accordingly set aside.
The learned counsel for the parties submitted that the next date of hearing before the Civil Judge (JD) Deoria is fixed on 28.4.2019 which being Sunday, is a holiday.
In view of the above, the petition is finally disposed of studded with direction that the learned Civil Judge (JD) may hear the application 6 C on May 3,2019 finally. The learned counsel for the petitioner/defendant undertakes to file reply before the date fixed before the court below.
In the mean while, status quo as regards the suit property shall be maintained till 3.5.2019. It may be noted that on the date fixed, no adjournment in any circumstances shall be granted and the application 6C shall be decided on the date fixed.
The office is directed to supply certified copy of this order today itself.
Order Date :- 26.4.2019 MH