Durga Prasad vs Hira Lal and Others

Hon''ble Abhinava Upadhya, J.—By means of this writ petition the petitioner has challenged the order of the revisional court by which the petitioner has been restrained from selling the suit property.

It is alleged that a suit being Suit No. 138 of 2006 is between the father and the son. The plaintiff, who is the father, has filed the said suit for cancellation of sale deed alleged to have been executed by the son (defendant) in respect of the suit property. In the said suit an application under Order XXXIX Rule 1 CPC was filed. It is alleged that before the trial court there was an agreement between the parties that the suit itself be decided on merit without grant of any interim injunction.

The suit was proceeded with and it is stated that seven issues were framed out of which two issues have been decided against the plaintiff holding that the suit is not bared by Section 49 of the U.P.Consolidation of Holdings Act against which revision was filed and the same is is still pending.

In the meantime, the plaintiff moved an application before the trial court that the defendant-petitioner is threatening to sell the property or may change the nature of the property as such he may be restrained from doing so.

Against the said application defendant-petitioner filed his objection and a specific stand was taken that neither the defendant is selling the property nor is in any way changing the nature of the property and, therefore, the application for interim injunction at this belated stage ought to be rejected. The court below noted the objection of the defendant-petitioner but restrained the defendant from selling the suit property vide order impugned dated 29.10.2011.

Sri Faujdar Rai, learned counsel appearing for the petitioner submits that there was no occasion for granting such an injunction now when both the parties to the suit at the initial stage itself had agreed that the suit be decided on merit without any interim injunction. According to the learned counsel for the petitioner there was no change in the situation which would merit the application for interim injunction at this stage and, therefore, the order of the revisional court dated 29.10.2011 deserves to be quashed.

I have considered the submissions made by the learned counsel for the petitioner and have also perused the order impugned.

In my view, since there is no adverse effect upon the possession of the petitioner-defendant over the property in question and the suit itself is of cancellation of sale deed, the order impugned by which the petitioner has been restrained from selling the property in question dose not in any way cause any prejudice to the petitioner-defendant at this stage and, therefore, I am not inclined to interfere with the same in exercise of extraordinary jurisdiction conferred upon this Court under Article 226 of the Constitution of India.

Learned counsel appearing for the petitioner-defendant has then submitted that the suit itself may be decided expeditiously.

Such an order cannot be passed at this stage in view of the judgment of a Division Bench of this Court in Km. Shobha Bose Vs. Judge Small Causes and Others 2010 (1) ADJ 531 (DB).

However, the writ petition is being disposed of with the observation that the said suit itself be proceeded with and decided by the court below without granting unnecessary adjournment to either of the parties.

With the aforesaid direction, the petition stands finally disposed of.