Allowed

Mazid Khan v. Punwa and Another

Allahabad HC18 Feb 2021A227/1127/2021

Case brief

AI extract

What is this about?

In this writ petition under Article 227, the High Court set aside an order rejecting an application to extend an interim injunction after a civil appeal was restored to its original number, holding that the interim order granted earlier should have been extended.

What did the court decide?

The order dated 23.09.2020 was set aside. The Appellate Court was directed to pass a fresh order on the extension application within one month.

Mazid Khan Vs Punwa and Another — Property and Title | Allahabad HC (2021)

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Court No. - 10

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Case :- MATTERS UNDER ARTICLE 227 No. - 1127 of 2021

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Petitioner :- Mazid Khan Respondent :- Punwa And Another Counsel for Petitioner :- Anand Kumar Pandey,Kamini Pandey (Dubey)

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Hon'ble Prakash Padia,J.

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Heard learned counsel for the petitioner.

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The petitioner has preferred the present petition under Article 227 of the Constitution of India with the prayer to set aside the order dated 23.09.2020 passed by the Additional District Judge/Special Judge (DAA) Lalitput in Misc. Appeal No.23 of 2017 (Mazid Khan Vs. Punwa and another).

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Facts in brief as contained in the petition are that petitioner/plaintiff has filed a Civil Suit No.52 of 2015 (Mazid Khan Vs. Punwa and another) for permanent injunction to restrained the respondents to interfere in the peaceful possession of the petitioner over plot No.1306Kha, Rakba 0.02 hectare. Along with the aforesaid suit, an application for grant of temporary injunction has also been filed. The respondent/defendants put their appearance and filed Written Statement. The application for grant of temporary injunction was rejected by the Trial Court vide its judgment and order dated 14.10.2017. Aggrieved against the aforesaid order, a Misc. Appeal No.23 of 2017 has been filed by the petitioner before the District Judge Lalitpur. In the said appeal, an exparte interim order of status quo has been granted by the Additional District Judge/Special Judge, (DAA) Lalitpur on 21.12.2017. The aforesaid appeal was dismissed in default by the Appellate Court vide order dated 07.12.2018. Immediately thereafter, a restoration application was filed by the petitioner.

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The said application was allowed by the Appellate Court vide order dated 13.02.2020 by imposing a cost of Rs.200/-.

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It is argued that though the appeal was restored to its original number but the interim order granted on 21.12.2017 was not extended. In view of the same, another application for extension of interim order has been filed by the petitioner but the said application was rejected by this Court vide its order dated 23.09.2020. It is argued that the ground taken for rejection of the aforesaid application is that the after restoration of the appeal, interim order could only be granted after hearing the other side. It is argued that once the interim order is granted exparte by the appellate court itself, then after restoration of the appeal, the appellate Court is bound to extend the interim order. Counsel for the petitioner relied upon a judgement of the Hon'ble Supreme Court in the case of Vareed Jacob Vs. Sosamma Geevarghese and others reported in 2005 (23) LCD 661 . It is argued that in the aforesaid case it was held by the Apex Court that when the dismissal order was set aside and the suit was restored, the effect of restoring the suit was to restore the position prevalent till the dismissal of the suit or before dismissal of the title execution suit. In this view of the matter, it is argued that order dated 23.09.2020 is absolutely illegal and contrary to the law laid down by the Apex Court.

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Heard learned counsel for the petitioner and perused the record. From perusal of the record, it is clear that the restoration application was allowed and the appeal was restored but the interim order was not extended. When fresh application for the same purpose had been filed, the same was also rejected.

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In this view of the matter, the Court is of the prima facie opinion that the order dated 23.09.2020 is absolutely illegal in view of the law laid down by Hon'ble Apex Court in the case of Vareed Jacob (supra), the same is liable to be set aside and is

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hereby set aside.

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The petition is allowed.

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The Appellate Court is directed to pass appropriate fresh order on the extension application in accordance with law on the next date fixed in the matter. In case, on the said date on account of any reason, the said application could not decide on the said, the court below will decide the same expeditiously and preferably within a period of one month thereafter. Order Date :- 18.2.2021 saqlain

Mazid Khan v. Punwa and Another

Case brief

What is this about?

What did the court decide?

Mazid Khan v. Punwa and Another

Case brief

What is this about?

What did the court decide?

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