Remanded

Brijmani Devi Devendra Jain Samiti, through Its President Rai Virendra Prasad Jain and Another v. Smt. Suman Dubey

Allahabad HC14 Feb 2019A227/8802/2018

Case brief

AI extract

What is this about?

This writ petition under Article 227 challenged temporary injunction orders granting possession to a plaintiff who filed a suit in the name of a non-existent society. The Court held that the trial court erred by ignoring specific objections regarding the wrong party and lack of landlord-tenant relationship. The writ petition was allowed, and the injunction orders were set aside with remittal for f

What did the court decide?

Orders dated 23.7.2015 and 30.10.2018 were set aside; matter remitted to the trial court for fresh consideration of the temporary injunction application.

Brijmani Devi Devendra Jain Samiti, through Its… — Property and Title | Allahabad HC (2019)

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Court No. - 36

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Case :- MATTERS UNDER ARTICLE 227 No. - 8802 of 2018 Petitioner :- Brijmani Devi Devendra Jain Samiti, Through Its President Rai Virendra Prasad Jain And Another Respondent :- Smt. Suman Dubey Counsel for Petitioner :- C.K.Parekh,Deepak Singh Counsel for Respondent :- Ashish Kumar Mishra

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Hon'ble Mrs. Sunita Agarwal,J.

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Heard learned counsel for the parties and perused the record.

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The present petition has been heard for final disposal with the consent of learned counsel for the parties, without calling for the counter affidavit.

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The dispute herein has been raised with regard to the validity of the orders of temporary injunction granted in favour of respondent/plaintiff in Original Suit No.595 of 2015 (Smt. Suman Dubey v. Brijmani Devi Devendra Jain Samiti). The petitioners 1/1 herein is Vishnu Bhagwan Educational Society. The petitioners 1 and 2 have been arrayed as petitioners in view of the fact that the aforesaid suit has been filed against them.

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Learned counsel for the petitioner no.1/1, at the outset, submits that there does not exist any Society in the name of Brijmani Devi Devendra Jain Samiti and the suit has been filed in the name of a wrong person. The defendant no.2 namely Shri Samrendra Jain son of Rai Virendra Prasad Jain has nothing to do with the Society namely Vishnu Bhagwan Educational Society. It is contended that the suit property is actually owned by Vishnu Bhagwan Educational Society, which is a registered Society within the meaning of the Societies Registration Act, 1860 and its registration is valid as on date. With reference to the registration certificate at 'Page 144' of paper book, copy of Khatauni of the year 1411-1416 ('Page 143' of the paper book), it is demonstrated by the learned counsel for the petitioners that the suit land is part of the Plot No.27/5 measuring 0.3720 Hectares, which is recorded in the name of Shri Vishnu Bhagwan Educational Society, a registered Society under the Societies Registration Act, 1860.

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It is further demonstrated by learned counsel for the petitioner no.1/1/ that specific objection has been taken in the written statement filed on behalf of the respondent no.1 i.e. the President of Shri Vishnu Bhagwan Educational Society that the suit has been filed in the name of a wrong person and there was no landlordtenant relationship between Shri Vishnu Bhagwan Educational Society and the plaintiff/respondent.

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At no point of time, the suit property which is part of Khasra No.27/5 (area 0.3720 Hectares) has been given on rent to the plaintiffs by the petitioner no.1/1 society, which is the actual owner.

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A perusal of the order of the trial court indicates that though the objections taken by the defendant no.1/petitioner no.1/1 herein have been taken note of by it, but there is no consideration to the same while recording the findings on the prima facie case in favour

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of the plaintiff.

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The trial court is swayed by the fact that the plaintiffs had submitted rent receipts of the year 2003-2012 in her name and has submitted the electricity bill etc. It has opined that the question as to whether the said rent receipts were forged documents would be considered after evidence are led by the parties.

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These findings returned by the trial court in granting temporary injunction, cannot be said to be correct in view of the specific objections raised by the President of the Society namely Shri Vishnu Bhagwan Educational Society of denial of any landlordtenant relationship between the society and the plaintiff. Further, the fact that the suit has been filed in the name of a wrong person as urged by the petitioner no.1/1 herein, has not even been taken note of by the trial court. No consideration, whatsoever, has been made in this regard by the trial court or the first appellate court.

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It is settled law that a plaintiff, who is seeking injunction has to come out with the clean hand and state correct facts before a court of law. In a suit which is filed in the name of a wrong person, mere fact that certain rent receipts were placed before the trial court allegedly pertaining to the suit property, would not be sufficient to grant temporary injunction. The plaintiffs claim their right to retain possession of the suit property being tenant of the Society which has been impleaded as defendants therein. It was, therefore, incumbent upon them to establish that the said society is/was in existence on the date of inception of the tenancy and further on the date of institution of the suit and there was a landlord-tenant relationship between the plaintiff and the defendants impleaded in the Original Suit No.595 of 2015 (Smt. Suman Dubey v. Brijmani Devi Devendra Jain Samiti).

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All these pertinent questions were required to be examined by the trial court before arriving at its finding on three ingredients for grant of temporary injunction i.e. prima facie case, balance of convenience and irreparable loss. No such consideration has been made by the trial court. The first appellate court has also committed the same illegality in affirming the order of grant of temporary injunction.

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For all the aforesaid, both the orders dated 23.7.2015 as also the order dated 30.10.2018 passed by the Civil Judge, (Junior Division), Gorakhpur and V Additional District Judge/Special Judge, Gangster Act, Gorakhpur; respectively, cannot be sustained, the same are hereby set aside. The matter is remitted back for fresh consideration before the trial court i.e. Civil Judge, (Junior Division), Gorakhpur, with the direction that an effort shall be made to decide the temporary injunction application, as expeditiously as possible, considering the objections filed before it.

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In view of the above observations and directions, the present petition is allowed.

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Order Date :- 14.2.2019/Jyotsana

Brijmani Devi Devendra Jain Samiti, through Its President Rai Virendra Prasad Jain and Another v. Smt. Suman Dubey

Case brief

What is this about?

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Brijmani Devi Devendra Jain Samiti, through Its President Rai Virendra Prasad Jain and Another v. Smt. Suman Dubey

Case brief

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What did the court decide?

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