Vimal Shah vs Shri Mahesh Chandra Shah & Others

Sharad Kumar Sharma, J

The plaintiff petitioner on 01.02.2011 had filed a suit in relation to the property as described at the foot of the plaint for claiming a decree of permanent injunction in relation to the property in dispute. The said Suit thus instituted accompanied with an application under Order 39 Rule 1 & 2. The Court of Civil Judge (J.D.) by the judgment dated 21.02.2011 had considered the property of the application under Order 39 Rule 1 & 2, as well as the objection under Order 39 Rule 4 paper No. 17ga as filed by defendants in objection to it and thereby by the temporary injunction order dated 21.02.2011 the defendants were restrained from interfering over the property, i.e. House No. 39, and particularly the part which was in possession of the plaintiff. The injunction was granted in relation to the property, which was demarcated by the plaintiff (petitioner herein) in the plaint map, which was filed along with a Suit being paper no. 5ka and the property over which the injunction was granted was described as to be figure A, B, C and D.

The nature of injunction, which was granted by the learned Trial Court, vide its order dated 21.02.2011, it was to the effect that the parties to the Suit were restrained from raising any construction or interfering over the property in question, which was being occupied by the plaintiff/petitioner. Relevant portion of the judgment is quoted hereunder:

"आदेश

वादी द्वारा प्रस्तुत प्रार्थना पत्र 6ग स्वीकार किया जाता है। तद्नुसार आपत्ति 17ग निस्तारित की जाती है। प्रतिवादीगण को आदेशित किया जाता है वह कि भवन सं0-39, के वादी के कब्जे वाले भाग के ऊपर स्थित है, भाग जिसे वादपत्र के साथ संलग्न मानचित्र कागज सं0-4ग में अक्षर अ ब स द से दिखाया गया है, में दौरान वाद किसी प्रकार का निर्माण कार्य व हस्तक्षेप करने से बाज रहे।

पत्रावली वास्ते जवाबदावा व विरचित किये जाने वाद बिन्दु दिनांक 15-03-2011 को पेश हो।"

Its being aggrieved against this order, dated 21.02.2011 passed by the Civil Judge (Jr. Div.) Nainital the defendants (respondents herein) had filed a Miscellaneous Civil Appeal No. 7 of 11 'Sri Mahesh Chandra Sah & Others vs. Vimal Sah' by invoking the provisions contained under Order 43 Rule 1 (r), the learned Appellate Court after considering the propriety of the temporary injunction, which was granted by the order dated 21.02.2011 in favour of the plaintiff (petitioner herein) while passing the impugned order under challenge in the present writ petition and as rendered in the aforesaid Civil Miscellaneous Appeal on 15.04.2011, had passed an order to the effect that while partially allowing the appeal of the defendants/respondents the parties were restrained from raising any construction, but, however, a rider was attached to it was to the effect that the defendants would be permitted to raise the construction over the portion of the property i.e. apart from the property, which was described in paper No. 18ga/6, which was part of the property bearing Municipal No. 38A. The direction of appellate court vide its order dated 15.04.2011, is under challenge in the writ petition. Operative portion of the judgment is quoted hereunder:

"आदेश

अपीलार्थीगण की अपील आंशिक रूप से स्वीकार की जाती है। प्रतिवादीगण को आदेशित किया जाता है कि वह भवन संख्या 39 में वादी के कब्जे वाले भाग में किसी प्रकार का निर्माण कार्य नहीं करेंगे, परन्तु प्रतिवादीगण भवन संख्या 39ए में कागज संख्या 18ग/6 के अनुसार निर्माण करने हेतु स्वतंत्र होंगे। वादी द्वारा, प्रतिवादीगण द्वारा भवन संख्या 38ए अनेक्सी मेलविल हॉल में किये जाने वाले निर्माण में किसी प्रकार का अवरोध उत्पन्न नहीं किया जायेगा।

विद्वान अवन न्यायालय का अभिलेख वापस भेजा जाय।"

It is this appellate order whereby the liberty was granted by modifying the order of the Trial Court dated 21.02.2011, by which it was permitting the defendants to raise the construction in relation to the part as demarcated by the appellate order as shown by paper No.18ga/6 filed by the defendant, is put to challenge by the plaintiff/petitioner before this Court by filing the present writ petition praying for quashing the order of the Appellate Court dated 15.04.2011 and with a direction that the Trial Court's order dated 21.02.2011 may be sustained.

When the writ petition was instituted before this Court on 16.05.2011 the Court without granting an interim order had passed an order of issuing notices to the respondents. The petitioner is shown to have taken steps for serving the defendants/respondent nos. 1, 2 and 3 both ways by normal mode of service as well as dasti. Under the normal mode of service it is reported by the Registry on 21.06.2011 that when the process server visited the place the defendants/ respondents they were not found there at the given address, but in the affidavit of service, which has been filed by the petitioner, as he was also directed to serve the respondents by dasti too, the respondents are shown to have been serve by refusal and an affidavit of service has been filed on record to the said effect on 22.06.2011.

After considering the propriety of the affidavit of service with regards to the service by refusal and also considering the fact that the writ petition is pending consideration since after the same being instituted on 13.05.2011 in relation to a Suit, which is pending since 2011, this Court while accepting the propriety of the affidavit of service treats that the respondents have been served satisfactorily, but still they have chosen not to put in appearance and contest the writ petition on merits.

The argument, which has been extended by the learned counsel for the petitioner is to the effect that in an appeal, which has been preferred by the defendants/respondents being against the grant of temporary injunction the Appellate Court while exercising its powers under Order 43 Rule 1 (r) could have either maintained the injunction order granted by the Trial Court on 21.02.2011 or at the most could have quashed it and rejected the application of the plaintiff/petitioner filed under Order 39 Rules 1 & 2 the Code of Civil Procedure.

The main grievance of the petitioner is that in an appeal preferred by the defendants/respondents against the order of temporary injunction dated 21.02.2011 the Appellate Court by the impugned judgment dated 15.04.2011 could not have modified the order of temporary injunction granted on 21.02.2011, which was beyond the relief claimed in the principal application for injunction by permitting the defendants to raise the construction over remaining part of the property bearing Municipal No. 38A as shown by the document Annexure-18ga/6 filed by the defendants, particularly when defendants were not the applicants under order 39 Rule 1 & 2 of Civil Procedure Code.

This Court is in agreement that the argument extended by the learned counsel for the petitioner to the effect that in an appeal preferred by the defendants against the grant of injunction, by an order dated 21.02.2011, the Appellate Court could have either maintain the injunction order or could have allowed the appeal, but while passing the impugned order dated 15.04.2011, the direction issued by the Appellate Court permitting the defendants to raise the construction over the part of the property in dispute, which they have depicted by way of paper No. 18ga, cannot be sustained because it would amount to that the Appellate Court while exercising its powers under the civil miscellaneous appeal under Order 43 Rule (1) (r) has exceeded in exercise of its jurisdiction that instead of determining the propriety of the injunction order granted in favour of the plaintiff, it could have either accepted the injunction order or could have denied it, but rather it could not have carved out altogether a distinct case by permitting the defendants to raise the construction over part of the property in dispute, which is a subject matter of the suit preferred by the plaintiff, because it may result into frustrating the suit itself.

In that view of the matter, while partially allowing the writ petition the impugned order dated 15.04.2011 is quashed to the extent where the Appellate Court has permitted the defendants to raise the construction over part of the property bearing Municipal No. 38A paper No. 18ga/6 and the injunction order as granted by the learned Trial Court on 22.02.2011 is directed to be maintained in its totality.

Considering the fact that the Suit is pending consideration since February, 2011, this Court while partly allowing the writ petition, requests the learned Trial Court, before whom the Suit in question is pending, to decide the Suit No. 3 of 2011 'Vimla Shah vs. Shri Mahesh Chandra Shah & Others' itself as expeditiously as possible, but not later than one year from the date of production of certified copy of this order.

Subject to the above observation, the writ petition partially succeeds.

However, there would be no order as to cost.