Anil Mahendra vs Mahesh Nath Mahendra and 2 Others

The instant appeal has been preferred under Order 43 Rule 1(r) CPC assailing the order dated 29.07.2025 passed by Civil Judge (Senior Division) Hardoi in Regular Suit no.314 of 2023 whereby the trial court has directed the parties to maintain status quo.

¶15

Submission of learned Senior Counsel for the appellant is that the instant litigation has a prelude. Initially two suits came to be filed in the year, 1996 between the parties bearing R.S no.140 and 150 of 1996 relating to properties which were mentioned and described in the schedule marked as A and B respectively.

¶16

In so far as the suit no.150 of 1996 is concerned, the appellants who were plaintiff in the suit had sought decree of declaration and injunction. The said suit came to be decreed by means of the judgment and decree dated 12.07.1996 and a declaration was granted by the Court but no decree for injunction was passed. However, the said judgment has been placed on

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FAFO No. 379 of 2025

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record as Annexure-10 and from a perusal thereof, it would indicate that the plaintiffs of the said suit who are the appellant herein were declared as the owner of the said property, however, life estate was recognized for Smt. Sheela Rani Mahendra.

¶20

It is after two decades that at the behest of the private respondents, an application under Order 9 Rule 13 CPC was moved and simultaneously a Regular Civil Appeal under Section 96 CPC was also filed accompanied by an application under Section 5 of the Limitation Act, 1963. Suffice to note that as far as the application under Order 9 Rule 13 was concerned, the same came to be dismissed for want of prosecution. However, in the appeal, the delay was condoned by the first appellate court and the said order by which the delay was condoned came to be assailed by the appellants herein by filing petition under Article 227 of the Constitution of India bearing no.3833 of 2022.

¶21

A coordinate Bench of this Court by means of the order dated 10.02.2023 while posting the matter for further hearing had made certain observations which for the purposes of the instant appeal would be relevant and the same are being reproduced for ready reference:

¶22

"District Judge, Hardoi, is directed to post further hearing in proceedings of First Appeal No.20 of 2022 after 27.02.2023 and to furnish a report regarding service upon opposite party no.2 by the next date of listing."

¶23

In the aforesaid backdrop of facts, the private respondent instituted a fresh suit for partition which came to be registered as R.S no.314 of 2023 and in the said suit, an application under Order 39 Rule 1 and 2 CPC was also filed. The said suit was contested by the appellant who filed their written statement, however, later an application for amendment was moved by the appellant introducing a counter claim, however, it has been informed that the said amendment has not been allowed yet.

¶24

Be that as it may, in reply to the application for interim injunction moved by the plaintiff/private respondents, it was contested on behalf of the appellant that no injunction could be granted for the reason that there is already a decree of declaration subsisting in favour of the appellant and the second suit could not be filed and moreover, no injunction in any case could have been granted, however the trial court after considering the submissions of the respective parties by means of the order dated 29.07.2025 has directed

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the parties to maintain status quo and it is this order which is under challenge before this Court.

¶28

Submission of the learned Senior Counsel is that while considering an application for interim injunction, the subsistence of three golden ingredients i.e. prima facie case, balance of convenience and irreparable injuries must coexist. In absence of any one ingredient, an application for injunction could not be allowed. It is urged that in the instant case, where it was admitted to the respondent that the first appeal is already engaging the attention, however, there is no change in so far as the status of the appellant herein is concerned as he still continues to be owner of the property in light of the decree declaring the rights of the present appellant, hence, in such circumstances, the suit itself was not maintainable and even though the appellant had moved an application under Section 10 CPC but the same is pending and not decided and in such circumstances, the grant of injunction by an order was not in sound exercise of jurisdiction by the trial court.

¶29

Sri Anurag Narain learned counsel appearing for the respondent no.1 has vehemently urged that the decree upon which the appellants are claiming rights, is already subjudice. Even though, the delay was condoned and the appellant herein preferred the petition under Article 227 of the Constitution of India bearing no.3833 of 2022 but there is no interim order to the effect which stays the operation of the said order, thus, the effect would be that the matter is under consideration of the first appellate court.

¶30

It is further urged by Sri Narain that the observations made by a coordinate Bench of this Court in its order dated 10.02.2023, has been noticed by the Court, and the said indulgence has been extended and as such even though there may not be a formal stay but the fact remain that there are observations given by a coordinate Bench dealing the matter directing the District Judge, Hardoi to fix the appeal for a further date. It is also urged that even though the appellant has filed an application under Section 10 CPC but the same has not been decided and therefore, there cannot be any impediment in the rights of the plaintiff respondent to get an injunction specially to preserve the property in question which is joint and the plaintiffrespondent have claimed a relief of partition.

¶31

It has further been urged that in a suit for partition, it is always in the fitness of things that the status quo be maintained and Sri Narain also further

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urges that he has already stated that he will not interfere in the possession or running of business of the appellant but the only contention or apprehension is, that the appellant may not alienate or create third party rights and in such circumstances, the grant of status quo by the trial court cannot be considered as an order which requires any interference hence, the appeal deserves to be dismissed.

¶35

In support of his submissions, he has relied upon the decisions of the Apex Court in Ali Hossain and Ors v. Showkat Ali and Ors; (2008) 8 SCC 180 and in another decision of this Court in Km. Sunita v. Smt. Manju; 2025 AIR Alld 263.

¶36

The Court has heard learned counsel for the parties and also perused the material on record.

¶37

In so far as the appeal is concerned, it definitely requires consideration, hence, the appeal is admitted .

¶38

As far as the issue regarding grant of ad interim relief is concerned, the Court after hearing the learned counsel for the parties and from a perusal of the record finds that prima facie there are issues which should have been considered while considering the application for injunction and before granting it, they are:

¶39

(i) the decree dated 12.07.1996 whereby the defendant appellant were declared as the owner of the property still continues to subsist.

¶40

(ii) the subsequent suit for partition (from which this appeal arises) filed by the respondent can be appreciated once it is found that that there is relationship between the parties to the suit of being co-owners. However, once, a decree for declaration is effective, apparently, it would sever the status of co-ownership.

¶41

(iii) In so far as the grant of injunction is concerned, it is also to be seen whether an injunction can be granted against the true owner.

¶42

(iv) The right of the ownership inheres the right to alienate and whether that can be impinged merely by filing a subsequent suit, after more than two decades, after the earlier decree had gained acceptance.

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(v) the impact of the petition under Article 227 of the Constitution of India

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bearing no.3833 of 2022 on the rights of the parties.

¶47

Having considered the impugned order, it appears that the trial court has not fully considered the issues involved and how the three ingredients for grant of injunction would have interplayed in the facts and issues involved. In absence of even one ingredient required for grant of injunction missing, whether the parties could be directed to maintain status quo is to be seen and considered. Accordingly, let the respondents file their objections or additional objections, if any.

¶48

In so far as the decision cited by the learned counsel for the respondents are concerned, in light of the issues involved as noticed above the said decisions may not have a direct applicability and in any case it can be considered at the time of hearing of the appeal as none of the two decisions lay down any proposition which may impact the maintainability of the appeal.

¶49

Sri Narain has candidly submitted in so far as the respondent nos.2 and 3 are concerned, he shall be appearing on their behalf as well and he will be filing his vakalatnama, as well. Hence, no notice is being issued to respondent nos.2 and 3.

¶50

List on 13.10.2025 for hearing.

¶51

As an interim measure, it is provided that the operation of the order dated 29.07.2025 passed by the trial court shall remain stayed till the next date of listing.

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September 23, 2025 Harshita

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(Jaspreet Singh,J.)

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Digitally signed by :- HARSHITA High Court of Judicature at Allahabad, Lucknow Bench

Anil Mahendra v. Mahesh Nath Mahendra and 2 Others

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Anil Mahendra v. Mahesh Nath Mahendra and 2 Others

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