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Judgment
Prakash Krishna, J.—Heard learned Counsel for the parties and perused the record.
The counter affidavit filed on behalf of the respondents is taken on record.
With the consent of the parties, this writ petition is disposed of finally at the admission stage.
The dispute relates to the property left by one Sri Bindra Prasad son of Nihal, resident of village Jalalpur, h/o Badail, pargana and tehsil Nawabganj, District Barabanki who was a recorded tenure holder of the land comprised in plot No. 453A. The contesting respondent No. 3 applied for mutation of his name after death of Sri Bindra Prasad in his place, on the basis of a Will allegedly executed by Sri Bindra Prasad in his favour. The petitioners contested the mutation proceedings and they set out a case that Bindra Prasad had executed a registered Will in their favour. The contention of petitioners was accepted by the revenue authorities and consequently the names of petitioners were mutated in the revenue records. In the meantime, the respondent No. 3, Ram Naresh Instituted a case No. 103 under section 229B of U.P.Z.A. and L.R. Act for declaration of his title in respect of the property in question on the basis of the Will executed in his favour. The said case is still pending before the SubDivisional Magistrate, NawabGanj, District Barabanki (hereinafter referred to as ''S.D.M.''). An application for injunction was filed before the S.D.M. by Ram Naresh, respondent No. 3. The said application was dismissed by the order dated 30.8.2003. It was found that the names of petitioners have been ordered to be mutated by the Tehsildar on 9th July, 2001 and the said order has been confirmed in revision and upto High Court stage. The proceedings remained pending and another attempt was made to obtain ad interim order from the S.D.M. Court in the said suit. An application to this effect was filed on 21.9.2005. On the said application the S.D.M. passed order to the effect that till further orders the parties are directed to maintain status quo. On objection being raised by the petitioners, the said order was recalled on 17th November, 2005 vide Annexure No. 6 to the writ petition and 22nd December, 2005 was the date fixed for framing of issues. Subsequently, the respondent No. 3 approached this Court in writ petition wherein it was directed that an application filed by the respondent No. 3 may be considered by the S.D.M. This time the S.D.M. on 7th May, 2007 passed ad interim injunction order, impugned in the present writ petition, on the ground that the petitioners have sold away the part of the disputed land. This order was unsuccessfully challenged in revision before the Addl. Commissioner, hence, the present writ petition.
Learned Counsel for the respondents submits that this Court should not interfere in the present writ petition as the present writ petition is directed against an interlocutory order. Refuting the aforesaid contention, learned Counsel for the petitioners submits that the impugned order has been passed without taking into consideration the legal principles for grant of interim injunction order and, therefore, the order is liable to be quashed.
Considered the respective submissions of the learned Counsel for the parties and perused the record.
It is not in dispute that on earlier occasion twice the injunction application filed by the respondent No. 3 was dismissed. It was found that the names of petitioners are recorded in the revenue records and the said order has attained the finality.
Learned Counsel for the respondents invited attention of this Court towards section 229D of the U.P.Z.A. and L.R. Act which confers power on Revenue Court to pass injunction order in appropriate cases. No doubt, power has been conferred under section 229D on revenue authorities to pass injunction orders in appropriate cases. But grant of an interim relief is not a matter of course. It is acknowledged legal position that before granting an injunction order the Court is required to record a finding on the following three questions: (i) Prima facie case (ii) Balance of convenience and (iii) Irreparable loss; in favour of the applicant who is seeking ad interim injunction order.
The hon''ble Apex Court in its decision reported in Industrial Credit & Investment Corporation of India Ltd. v. Grapco Industries Ltd. and others 1999 (36) ALR 592 (SC) has observed that "An exparte order is only of a short duration and it is granted to safeguard the interest of the applicant, but, at the same time such an order cannot be granted as a matter of course. A Court or Tribunal has also to consider the consequences of such an order if ultimately the order is to be revoked after hearing the defendant. In such circumstances, the Tribunal must put the applicant on terms while granting an ex parte order and compensate the defendant in case the ex parte order was obtained without any justification and harm has been caused to the defendant. An exparte order can also affect the reputation of the person against whom it is issued and sometimes it may be difficult to undo the damage caused by an interim order. A Tribunal while granting an ex parte order of stay or injunction must record reasons, may be brief ones, and cannot pass a stereotyped order in terms of the prayer made. Thus an ex parte order cannot be allowed to continue indefinitely and the continuance of an interim order has to be decided without undue delay when the defendant puts in his appearance. It is not necessary to hear long drawn arguments.
The principles on which interim order can be granted, are well settled. Further, the Honlble Supreme Court in the case of Morgan Stanley Mutual Fund v. Kartick Das, 1994 (4) SCC 225 has held that "An ex parte order could be granted only under exceptional circumstances. Grant of an ex parte order is not a rule but an exception. The factors which should weigh with the Court in the grant of ex parte injunction are (a) Whether irreparable or serious mischief will ensue to the plaintiff; (b) Whether the refusal of ex parte injunction would involve greater in justice than the grant of it would involve; (c) the Court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented; (d) the Court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grani, ex parte injunction; (e) the Court would expect a party applying for ex parte in1 junction to show utmost good faith in making the application; (f) even if granted, the ex parte injunction would be for a limited period of time; and (g) general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the Court."
In the case in hand, the S.D.M. has not recorded any finding on the above in gredients. He was swayed away by the consideration that since a part of holding has been transferred by the present petitioners, a case for grant of ad interim injunction order has been made out. However, it has not recorded a finding that the respondent No. 3 has got a primafacie case.
It is not in dispute that there is a registered Will in favour of the petitioners executed by Sri Bindra Prasad. The petitioners are the daughters sons of Sri Bindra Prasad while respondent No. 3 is not a family member or relative of Sri Bindra Prasad. He is a stranger. The second relevant fact is that in the proceedings under U.P. Land Revenue Act primafacie Will executed by Bindra Prasad in favour of the petitioners, has been found to be valid. The third relevant consideration is that the petitioners are relatives of the deceased tenure holder while respondent No. 3 is totally stranger. The Court below has also not taken into consideration the fact that on earlier two occasions it has dismissed the injunction application filed by the respondent No. 3. Unless forbidden by law, every owner of a property has right to transfer the property.
Taking into consideration the above facts, the impugned order dated 7th May, 2007 passed by the S.D.M. Nawabganj, District Barabanki (Annexure No. 12 to the writ petition) cannot be sustained. The same is hereby quashed. Consequently, the order passed by the Revisional Court dated 18.9.2007 (Annexure No. 15 to the writ petition) is also quashed. The writ petition succeeds and is allowed. However, the S.D.M. shall make an endeavour to decide the suit expeditiously, preferably within one year from the date of production of certified copy of this order.
It is made clear that the observations made above, will have no bearing on the merits of the case.