Allowed

Kashmeer Singh and Another v. State of U.P. and 8 Others

Allahabad HC6 Dec 2024WRIB/4629/2024

Case brief

AI extract

What is this about?

Petitioners challenged an order setting aside an ex-parte interim injunction without a written statement. The High Court found the trial court failed to consider statutory principles for injunctions. The impugned order was set aside, injunction revived, and matter remitted for fresh hearing.

What did the court decide?

Impugned order dated 10.09.2024 set aside; injunction of 25.04.2023 revived; matter remitted to trial court within 6 weeks; no third party rights to be created.

Kashmeer Singh and Another vs State of U.P. and 8 Others — Property and Title | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:191402

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Court No. - 49

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Case :- WRIT - B No. - 4629 of 2024 Petitioner :- Kashmeer Singh And Another Respondent :- State Of U.P. And 8 Others Counsel for Petitioner :- Anand Prakash Paul,Brij Bhushan Paul Counsel for Respondent :- Arvind Kumar Srivastava,C.S.C.,Sher Bahadur Singh

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Hon'ble Saurabh Shyam Shamshery,J.

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Heard Sri A.P. Paul and Sri B.B. Paul, learned counsel for petitioners and Sri Arvind Kumar Srivastava and Sri Sher Bahadur Singh, learned counsel for respondents.

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Proceedings are basically arising out of an order passed for temporary injunction during pendency of a suit filed by petitioners herein. Initially, by a short order dated 25.04.2023, at the stage of registration of suit, an injunction was granted and order was passed to issue notice to defendants. Aforesaid order is quoted below :-

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“ ववददरररजरसटरहह।ववदददवरवपसत पवररनवपतअनतररतधवरव 146 उ०प०रव०ससहहतववआददश 39 हनयम 1 व 2 सद०पद०सद०वधवरव 151 सद०पद०सद०परबहससतनदरयदअवलहकनहकयवउकपवररनवपत ममवहररतववदगसतभभहमपरववददलखवदरजससहवकशमदरजससहप त रर भवनजससहकद कबरदवदखलममपहतववददकवहसतकदपरहकवरवतवहहतरव भभहमकहखतदरबतदरकरनदवबनधकवहवकयआहदकरनदसदपहतबननधत ” हकयवरवतवहह।असकनहह।पहतववददररणकहनहहटसरवरदहह।

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Said order was challenged by some of defendants before Board of Revenue, however, same was dismissed vide order dated 10.10.2023 since a revision was not maintainable against an interlocutory order.

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It is not much disputed that defendants are served, however, till date no written statement is filed in said suit. Meanwhile, defendants have filed a fresh suit before Civil Court wherein an order of injunction was passed on 21.05.2024 in their favour which is a subject matter of a writ petition before this Court in Matter Under Article 227 No. 7716 of 2024 wherein vide order dated

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20.06.2024, aforesaid injunction order dated 21.05.2024 was directed to be remain stayed.

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It appears that when attempt of defendants/respondents herein was failed by above referred order passed by this Court, they rushed to participate in suit pending before Revenue Court by way of filing an application under Order 9 Rule 7 CPC that order dated 25.04.2023 was passed on incorrect facts and petitioners/plaintiffs are disturbing their possession.

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Aforesaid application was decided by S.D.M. vide order dated 10.09.2024 and it appears that it was heard on merit and order dated 25.04.2023 was set aside without even filing a written statement. Contention of defendants was accepted on a mere assertion that petitioners/plaintiffs are disturbing their possession. The order dated 10.09.2024 was challenged by the petitioners in a revision petition before Board of Revenue, which was dismissed vide order dated 16.10.2024 at the stage of admission. Both above referred orders are impugned in this writ petition.

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Learned counsel for petitioners submits that finding returned in impugned order are only on basis of oral submissions without any reply on behalf of defendants and till date despite, no written statement was filed, the suit has not proceeded and order for interim injunction was recalled.

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Learned counsel for respondents has supported the impugned order that on incorrect facts, interim order was granted in favour of petitioners/plaintiffs which was set aside by a reasoned order, however, it is not denied that till date no written statement is filed.

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As referred above, defendants/respondents have participated in the suit only after their attempt was failed since a stay granted in their favour in a civil suit

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was stayed by this Court in above referred order dated 20.06.2024.

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It is well settled that in order to pass an order of injunction under Order 39 Rule 1 and 2 CPC, the Court has to require 3 basic principles, viz., (a) prima facie case; (b) balance of convenience, and (c) irreparable loss and injury. However, trial Court has not considered above factors even while granting an ex-parte interim order on 25.04.2023 as well as while setting aside it by impugned order dated 10.09.2024. A factor has also been skipped that till date no written statement was filed by defendants as well as that application filed under Order 9 Rule 4 CPC dated 12.07.2024 also does not provide any reason to set aside order dated 25.09.2023. The revision was dismissed at the stage of admission. (see Bloomberg Television Production Services India Private Ltd. and others vs. Zee Entertainment Enterprises Ltd., 2024 INSC 255 ).

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In aforesaid circumstances, Court is of considered opinion that order dated 10.09.2024 has passed without applying above referred principles, therefore, it is hereby set aside and consequentially, revival of order dated 25.04.2023 is also set aside and matter is remitted back to trial Court to pass a fresh order after hearing rival parties within 6 weeks from today. Written statement shall be filed within two week.

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Court also considers that since this order may create a disturbance at the disputed land/plot, therefore, as agreed, it is directed that no third party right will be created in any manner by any party for above referred period.

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Writ petition stands disposed of with above observations.

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Order Date :- 6.12.2024/N. Sinha

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Digitally signed by :- NIRMAL SINHA High Court of Judicature at Allahabad

Kashmeer Singh and Another v. State of U.P. and 8 Others

Case brief

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Kashmeer Singh and Another v. State of U.P. and 8 Others

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