Dayanand Shiksha Sansthan vs Smt. Shanti Devi and Others

B.S. Verma, J.

(Stay Application No. 4487 of 2011) 1. Heard learned Counsel for the parties and perused the record.

By means of this writ petition, the Petitioner-Plaintiff has sought a writ in the nature of certiorari quashing the judgment and order dated 7-4-2011 passed by the District Judge Dehradun in Misc. Civil Appeal No. 43 of 2011 Smt. Shanti Devi v. Dayanand Shiksha Sansthan and Ors. (Annexure No. 4 to the petition), whereby the order of temporary injunction passed by the trial court was set aside and the direction was given to the trial court to decide the temporary injunction application of the Plaintiff (paper No. 6-C2) afresh on merits.

Briefly stated, the facts giving rise to the present writ petition are that the Plaintiff-Petitioner filed a suit bearing Civil Suit No. 93 of 2011, Dayanand Shiksha Sansthan v. State of Uttarakhand and Ors. for a decree of permanent injunction against the Defendants-Respondents herein. Along with the suit, the Plaintiff-Petitioner moved an application for temporary injunction. In the order passed by the trial court, the Defendant No. 5-Respondent No. 1 has been presumed to have been sufficiently served under Order 5, Rule 15 Code of Civil Procedure.

After hearing all other parties, the Civil Judge (Senior Division) Dehradun by an ex parte order dated 7-3-2011 restrained the Defendant Nos. 1 to 4 (Respondent Nos. 3 to 6 herein) from delivering possession and other profit in respect of the property in suit to Defendant Nos. 5 and 6 (Respondent Nos. 1 and 2 herein) or their family members.

Aggrieved by the said order, the Defendant No. 5-Respondent No. 1 herein preferred Misc. Appeal No. 43 of 2011 before the District Judge Dehradun. The learned District Judge, after hearing the parties, by his order dated 7-4-2011 has held that the service on Defendant No. 5-Respondent No. 1 herein was wrongly presumed sufficient under Order 5, Rule 15 CPC Ultimately, mainly on this ground, the appeal was allowed, the impugned order dated 7-3-2011 passed by the trial court was set aside and the case was remanded to the trial court with the direction to decide the application for temporary injunction (paper No. 6-C) afresh on merits after affording opportunity of filing objection and hearing to the Respondent No. 1 herein.

The grievance of the Petitioner is that the learned District Judge apart from observation on the issue of service upon Defendant No. 5 has made some other observations in the order, which may affect the mind of the trial court, therefore, the Plaintiff-Petitioner has filed the present writ petition for quashing the order dated 7-4-2011.

Learned Counsel for the Respondent No. 1 herein (Defendant No. 5) has submitted that the writ petition may be disposed of as on today without counter version.

The learned Counsel for the Petitioner has contended that the comments made on the merits of the suit by the learned District Judge are unwarranted and beyond the scope of the Miscellaneous Appeal.

The apprehension of the Petitioner is that the finding recorded by the learned District Judge in the impugned order may affect the mind of the trial court while deciding the application for temporary injunction (paper No. 6-C).

In the above facts and circumstances, it is made clear that the trial court shall decide the temporary injunction application afresh (paper No. 6-C2) on merits in accordance with law after hearing both the parties expeditiously, without being influenced by the findings recorded by the appellate court in the impugned order dated 7-4-2011 except that on the point of service upon Defendant No. 5-Respondent No. 1 herein.

With the said observations, the writ petition is disposed of finally.