Hafiz Moin Ashraf vs District Judge and Others

Devi Prasad Singh, J.—Admit.

Learned Chief Standing Counsel has accepted notice on behalf of opposite parties 1 and 2 while Mr. Jaspreet Singh, holding brief for Mr. B.K. Saxena, appears for the opposite parties 3 and 4.

Let a counter affidavit be filed within three weeks, rejoinder thereto be filed within the next two weeks. List thereafter for peremptory hearing.

The plaintiff petitioner has filed a suit for permanent injunction. The trial court by order dated 2.8.1995 granted temporary injunction directing the parties to maintain status quo. It appears that during pendency of the suit, in violation of the injunction granted by the trial Court, the defendants proceeded to raise construction. Feeling aggrieved, an application u/s 151 CPC was filed to restrain the defendants from raising any construction. The application was rejected by the trial Court vide order dated 10.2.2004. Against the order dated 10.2.2004, a revision was preferred. That too, was rejected by the District Judge, Lucknow vide order dated 17.3.2004.

It has been stated that the order passed by the trial court and the revisional Court has been affirmed by this Court vide judgment and order dated 4.11.2009 passed in writ petition No. 1964(M/S) of 2004 and the Court has declined to interfere with the alleged construction raised by the defendants/respondents.

A perusal of the order dated 4.11.2009 reveals that this Court had directed the trial Court to maintain status quo relating to the property in question. However, the writ petition was disposed of finally by order dated 4.11.2009 without making any observation with regard to injunction granted at initial stage.

While considering identical controversy in writ petition No. 1191(M/S) of 2010, an interim order dated 9.3.2010 was passed by this Court holding that u/s 151 CPC, the Court has ample power to enforce its interim order or injunction. The courts have got right to direct district authorities to ensure that its orders should be complied with. The application u/s 151 CPC was decided and affirmed up to this Court without considering the catena of judgments of Hon''ble Supreme Court reported in Ram Chand and Sons Sugar Mills Pvt. Ltd. Vs. Kanhaya Lal Bhargava and Others, M/s. Ram Chand and Sons Sugar Mills Private Ltd. Barabanki (U.P.) v. Kanhayalal Bhargava and Ors. 2004 (4) SCC 468 Vareed Jacob Vs. Sosamma Geevarghese and Others, Vareed Jacob v. Sosamma Geevarghese and Ors.

At the face of record, the earlier finding is per incuriam to the law laid down by the Hon''ble Supreme Court. It was incumbent on the trial Court to enforce its order. In case the defendant was violating the interim order passed by the trial Court, then appropriate directions should have been issued by the trial Court to the local police to enforce its order. None-compliance of the injunction or order passed by the court is ante-thesis of rule of law. The Court must be vigilant and exercise its power conferred by Section 151 CPC to enforce its orders as well as the judgments.

In the present case, it appears that the trial Court has been failed to discharge its obligation in terms of various pronouncements of the Hon''ble Supreme Court. In case the alleged construction has been raised by the defendants in violation of the injunction granted by the trial court, then being a subsequent event, prima facie, I am of the view that the amendment should have been allowed by the trial court. Merely because a matter is pending since 1994, the court should not permit to perpetuate illegality, arbitrariness or abuse of power by a party involved in the pending suit. For the ends of justice, it is always open for the Court to permit to amend the plaint or written statement.

Moreover, in the present case, the proposed amendment relates to subsequent event. Prima facie, the amendment should have been allowed by the courts below in view of recent settled proposition of law by the Hon''ble Supreme Court in the case reported in Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others,

Accordingly, further operation of the impugned order dated 9.2.2010 and the order dated 8.12.2009 (Annexures 1 and 2 respectively) is stayed. Further proceedings shall also remain stayed.