Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 356 of 2019 Petitioner :- Sudheer Singh And 2 Others Respondent :- Abdul Hamid Khan Alias Abdul Hasin Khan And 2 Others Counsel for Petitioner :- Maithali Sharan Pipersenia
Hon'ble Mrs. Sunita Agarwal,J.
The prayer in the present petition is to set aside the order of ex- parte injunction granted by the trial court in Original Suit No.380 of 2018 (Abdul Hamid Khan v. Sadir Shah Khan) while issuing notice on application 6-Ga i.e. the temporary injunction application.
It is contended by the learned counsel for the petitioner that ex- parte temporary injunction order dated 19.12.2018 has been obtained by the plaintiff in Original Suit No.380 of 2018 i.e. respondent no.1 herein by concealment of fact of filing of the earlier suit namely Original Suit No.147 of 2005 between the same parties with regard to the same suit property.
It is contended that the temporary injunction application in Original Suit No.147 of 2005 has been rejected vide order dated 7.12.2018 passed by the same Court i.e. Civil Judge (Junior Division), Kayamganj, Farrukhabad. The plea taken by the plaintiff therein of the suit property being waqf property has been turned down while rejecting the temporary injunction application. The second suit namely Suit No.380 of 2018 has been filed with the assertion of the plaintiff being Mutawali of the waqf by virtue of waqf deed dated 5.12.1930. The ex-parte injunction order having been obtained by concealment of correct facts before the court below, cannot be sustained.
All these arguments raised by the learned counsel for the petitioner in the present petition can very well be taken by moving an appropriate application under Order 39 Rule 4 of the Code of Civil Procedure, 1908, before the trial court.
At this stage, learned counsel for the petitioner submits that the petitioner would be filing such an application before the Court of Civil Judge (Junior Division), Kayamganj, Farrukhabad in Original Suit No.380 of 2018 within a period of two weeks along with certified copy of this order. In case of filing of such an application, the court below would be under obligation to consider the said facts after inviting objections of the plaintiff of the suit i.e. the respondent herein.
In the event of filing of such an application within the aforesaid period, till disposal of the application or for a period of two months, whichever is earlier, the ex-parte injunction order dated 19.12.2018 shall be kept in abeyance.
However, in case of any adjournment on the part of the petitioner or non-filing of the application, for recall of the ex-parte injunction order under Order 39 Rule 4 C.P.C. within the aforesaid period, the interim protection granted hereinabove shall automatically stand vacated.
The present petition is, accordingly, disposed of. Order Date :- 21.1.2019 Jyotsana