Jayantri Prasad and Others vs Manoj Brahmchari and Others

Court No. - 4

Case :- MATTERS UNDER ARTICLE 227 No. - 2927 of 2024

Petitioner :- Jayantri Prasad And Others Respondent :- Manoj Brahmchari And Others Counsel for Petitioner :- Saurabh Srivastava Counsel for Respondent :- Anilesh Tewari

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Hon'ble Abdul Moin,J.

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Heard Sri Saurabh Srivastava, learned counsel for the petitioners and Sri Desh Deepak Singh, Advocate holding brief of Sri Anilesh Tewari, learned counsel for the respondent no. 1.

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Under challenge is the order dated 31.05.2024 passed by the learned Civil Judge (Junior Division), Sadar District- Pratapgarh in Regular Suit No. 983 of 2024, a copy of which is annexure 1 to the writ petition whereby the learned Court below has rejected the application no. 6 Gha 2 filed under Order 39 Rule 1 of the Code of Civil Procedure as filed by the petitioners/plaintiffs.

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The contention of learned counsel for the petitioners is that a suit for permanent injunction had been filed on 10.05.2024. The said suit was also accompanied by an application under Order 39 Rule 1 & 2 praying for an ad interim injunction. The learned Trial Court vide order dated 10.05.2024, a copy of which is annexure 8 to the writ petition issued notice to the respondents therein and pass an Ex-parte Ad Interim injunction.

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It is contended that on 15.05.2024, an application was filed by the defendant no. 1 therein for preponement of the case. The objections to the application for interim relief were also filed.

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Learned Trial Court preponed the date without any information to the petitioners herein and the matter was fixed for 22.05.2024. Thereafter, the matter was fixed on 28.05.2024 after a few dates being fixed in the interregnum and on the said date i.e 28.05.2024, the amendment application filed by the petitioners which was pending, was allowed and the matter was fixed on the date already fixed in the case which was 01.07.2024.

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A specific averment has been made in paragraph 29 of the writ petition that no arguments had taken place on 28.05.2024 nor any order sheet was written but a perusal of the order sheet dated 28.05.2024, the typed copy of which has been filed as part of annexure 8 to the writ petition would indicate that the learned Court below has also heard the objections on the application under Order 39 Rule 1 & 2 filed by the petitioners and thereafter the matter was fixed

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for 31.05.2024. On 31.05.2024, the order impugned has been passed whereby the application Order 39 Rule 1 & 2 has been rejected.

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The contention is that on the said date i.e 28.05.2024, the objections to the application under Order 39 Rule 1 & 2 were never heard rather it was only the amendment application which was heard by the learned Court below and consequently, there was no occasion for the learned Court below to have passed the order impugned dated 31.05.2024 whereby the application under Order 39 Rule 1 & 2 has been rejected.

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On the other hand, Sri Desh Deepak Singh, learned counsel for the respondent no. 1 states that in fact the arguments had taken place on the application 6 Gha 2 which arguments continued for about an hour and this fact was duly indicated by the learned Court below as finds placed in the order dated 28.05.2024 and hence it is apparent that the instant petition has been filed with material concealment of fact and with false allegations. Sri Singh also states that the petitioners have a statutory remedy for filing of an appeal under Order 43 Rule 1 of the Code of Civil Procedure and hence the instant petition is not maintainable.

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Responding to that, learned counsel for the petitioners states that as certain allegations have been levelled against the functioning of the learned Trial Court consequently, despite the availability of the alternative remedy of an appeal, considering the conduct of the learned Trial Court, this Court may summon the records in order to ascertain as to the actual status and the events which took place on 28.05.2024 viz-a-viz the averments made by the learned counsel for the petitioners.

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Considering the aforesaid more particularly the specific averment as made in paragraph 29 of the writ petition, let a copy of the petition be given to Sri Gaurav Mehrotra or Sri Vijay Dixit, learned counsels who usually appear on behalf of the High Court to seek instructions as to the sequence of events which took place on 28.05.2024 in the aforesaid case.

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Let the instructions be obtained and the matter be listed as fresh on 18.06.2024.

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The instructions pertaining to the order dated 31.05.2024 shall also be obtained.

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Order Date :- 12.6.2024 Pachhere/-

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Digitally signed by :- SATYENDRA SINGH PACHHERE High Court of Judicature at Allahabad, Lucknow Bench

Jayantri Prasad and Others v. Manoj Brahmchari and Others

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Jayantri Prasad and Others v. Manoj Brahmchari and Others

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