S.C. Mathur vs State Of Uttarakhand And Others

Manoj K. Tiwari, J

Petitioner is challenging the ex-parte temporary injunction order dated 26.12.2018, passed by learned Assistant Collector 1st Class, Vikas Nagar, District Dehradun in Revenue Suit No. 20 of 2018-19.

According to the learned counsel for the petitioner, Sarvodaya Retreat (respondent No. 3 herein) filed a declaratory suit under Section 229-B of Uttar Pradesh Zamidari Abolition & Land Reforms Act (from hereinafter referred to as 'UPZA&LR') seeking Bhumidari right over certain plots of agricultural land, situate in Village Pondha, Paragna Pachwadoon, Tehsil Vikas Nagar, District Dehradun. A temporary injunction application was also filed by respondent No. 3 alongwith said suit. Assistant Collector 1st Class, Vikas Nagar, Dehradun granted ex-parte temporary injunction in favour of plaintiff (respondent no. 3 herein), whereby petitioner has been restrained from transferring land or raising construction or changeing the nature of the said land, till next date of hearing.

Learned counsel for the petitioner submits that the order passed by learned Assistant Collector 1st Class is unsustainable as no notice, as contemplated under Order 39 Rule 3 of C.P.C, was issued to the defendants nor any reason for passing ex-parte order of temporary injunction has been recorded. He relies on a judgment rendered by Allahabad High Court in the case of Syed Mazhar Hussaini Vs. State of U.P. reported in 2004 (2) AWC 1265, where it has been held in para 5 that provisions of Code of Civil Procedure will mutatis mutandis apply to proceedings under UPZA&LR Act. He further relies upon a judgment rendered by co-ordinate Bench of this Court in WPMS No. 1121 of 2017 (Multiple Associates Vs. Board of Revenue & others, decided on 13.08.2018).

Be that as it may, this Court is not inclined to interfere in the matter at this stage, as the petitioner has the remedy of filing application against ex-parte temporary injunction under Order 39 Rule 4 of C.P.C.

Accordingly, writ petition is disposed of with liberty to the petitioner to approach the court concerned, by filing appropriate application/objection, as contemplated under Order 39 Rule 4 of C.P.C., within ten days from today.

Learned court below shall consider petitioner's application and pass appropriate order thereupon, on the next date fixed i.e. 25.02.2019. If it is not possible to decide the application of the petitioner on the date fixed, the same shall be decided on any other date, within two weeks thereafter. It is made clear that effect of the impugned order dated 26.12.2018 shall be kept in abeyance till the next date of listing or till the disposal of application of the petitioner, whichever is earlier.