Mohd. Akmal and others vs Muzammil Hussain

HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

CIVIL REVISION No. - 21 of 2025

Mohd. Akmal And Others

			.....Revisionist(s)
		Versus
Mu	zammil Hussain		.....Opposite
			Party(s)
Co Co	unsel for Revisionist(s) unsel for Opposite Party(s)	: Sankalp Mehrotra, :	Abhishek Dhaon
Alo	ng with :
1.	Civil Revision No. 20 of 20 Mohd. Akmal and others Muzammil Hussain	25: Versus
2.	First Appeal From Order Muzammil Husain	No. 365 of 2024: Versus
	Mohd. Akmal and others
3.	First Appeal From Order Muzammil Husain Mohd. Akmal and others	No. 366 of 2024: Versus

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Court No. - 6

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HON'BLE JASPREET SINGH, J.

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This is a batch of four petitions comprising of two FAFOs and two civil revisions, in between the same parties, arising out of an order passed on an application for injunction which has been rejected by the trial court and it has given rise to the FAFOs. Whereas, an order passed on an application moved by the defendants in a suit, under Order 7 Rule 11 CPC, which has also been dismissed, against which the defendants have come up before this Court in the two civil revisions. It is for the aforesaid reason that all the four cases have been connected and are being disposed of by this common judgment.

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For the sake of convenience, this Court has taken the facts from the First Appeal From Order No.365 of 2024 which is treated as a leading case amongst the four petitions.

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In order to appreciate the controversy involved in the aforesaid four petitions, it will be appropriate to take a glance at the facts giving rise to the instant petitions.

¶12

The appellant, namely, Muzammil Husain as plaintiff had instituted two separate suits bearing Regular Suit Nos.147 and 148 of 2024. In both the suits the claim of the appellant was on the basis of a partnership which was running a brick kiln. Alongwith the suit an application under Order 39 Rule 1 and 2 CPC was moved by the plaintiff-appellant, in both the suits, seeking to restrain the defendants of the suit from interfering in the possession of the plaintiff, restraining them from making any sales of the bricks as well as also sought remedy that the accounts may be rendered relating to the firm.

¶13

On the application under Order 39 Rule 1 and 2 CPC filed with the suit, the trial court exercising its power under Order 39 Rule 3 CPC, issued notices to the defendants of the suits on 30.05.2024. The plaintiff moved an application before the trial court under Section 151 CPC alleging that in view of the on coming summer vacations when the courts would be closed, the plaintiff had great apprehension that he would be dispossessed and in such circumstances it is necessary that the rights of the plaintiff be protected. On the said application the trial court passed an order granting the injunction in favour of the plaintiff against the defendants.

¶14

Later, the defendants of the suits put in appearance before the trial court and filed their objections against the application under order 39 Rule 1 and 2 CPC. They had raised various pleas, inter alia , that the suit was barred in terms of Section 69 of the Partnership Act 1932 as well as the fact that the partnership deed contained an Arbitration Clause, hence in view of the Section 8 of the Arbitration and Conciliation Act, 1996, the suits could not proceed rather the parties be required to get their disputes referred for arbitration.

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Similar plea was raised by the defendants in their application under

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Order 7 Rule 11 CPC.

The trial court after considering the submission of the respective parties rejected the application for injunction by means of order dated 27.08.2024 in both the suits which have been given rise to the instant FAFOs No.365 and 366 of 2024.

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The trial court also rejected the application under Order 7 Rule 11 CPC in both the suits which has given rise to Civil Revision Nos.20 and 21 of 2025.

¶21

The record indicates that by means of order dated 18.11.2024, the respondents were directed to disclose as to which partnership deeds were placed on record. In furtherance thereof, it has been informed by the counsel for the respondents (in appeal and the revisionist in the connected revision) that they had filed the requisite documents before the trial court alongwith their document list bearing paper No.Ga-22. The same has been brought on record alongwith the objections filed by the respondent dated 26.11.2024.

¶22

Shri Mohd. Arif Khan, learned Senior Counsel for the appellant in the two appeals and for the respondents in the connected revisions has vehemently urged that the order impugned dated 27.08.2024 by which the injunction application was dismissed is patently erroneous as it has been passed without affording reasonable opportunity of hearing to the plaintiff.

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It is further urged that there has been tampering in the order sheets of the trial court to justify the impugned order dated 27.08.2024 which also cannot be countenance and for the said reason the order on this score alone deserves to be set aside.

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Taking his submissions forward, learned Senior Counsel has urged that the plaintiff had filed the suit on 13.03.2024. Alongwith the said suit, an application under Order 39 Rule 1 and 2 CPC was also filed upon which notices were issued to the defendants. Thereafter on 30.05.2024, the plaintiff filed another application purportedly under Section 151 CPC bearing paper No.Ga-14 which was accompanied by an affidavit bearing

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Ga-15. The trial court considering the said application by means of order dated 30.05.2024 granted the injunction and the copy of the said order has been placed on record as Annexure no.5.

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It is urged that thereafter the respondents herein (the defendants in the suit) filed their objections. At that stage, the plaintiff had filed another application seeking to summon, certain documents including the partnership deed, dated 13.08.2024.

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It is submitted by relying upon Annexure no.8 which is the extract of the order sheet of the two suits indicating that the suit was fixed on 14.08.2024 for disposal of the application under Order 39 Rule 1 and 2 CPC bearing paper No.C-6. The matter was adjourned for 21.08.2024, on which date, the matter was further adjourned for 27.08.2024. It is from this stage that there is a digression between the parties, in so far as the manner in which the suit proceeded. As per the appellant, on 21.08.2024 the suit have been simplicitor adjourned for disposal of the injunction application fixing 27.08.2024. However, by resorting to some interpolation the words "vaad suna gaya" was incorporated in the order sheet.

¶30

The thrust of the submission is that this was done deliberately to allegedly precipitate a hearing on the application for injunction behind the back of the plaintiff. It is urged that though the suit was fixed for 27.08.2024, on which date, the application for injunction would have been heard but the trial court decided the injunction application on 27.08.2024 without affording any opportunity of hearing to the appellant. In order to buttress the aforesaid submission, it has been urged that on 24.08.2024 the plaintiff/appellant had filed a document list bringing on record a photocopy of the partnership deed and a death certificate. The trial court surreptitiously drew the order sheet indicating that the said two documents had been filed by the appellant and thereafter directed the matter to be listed on 27.08.2024, which was already the date fixed in terms of the order dated 21.08.2024, orders

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It is, thus, urged that actually there was no hearing on the application under Order 39 Rule 1 and 2 CPC and at best if at all there could have

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been any hearing, the same was only referable to the application for summoning of the documents dated 13.08.2024.

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It is further urged that neither the application dated 13.08.2024 was decided and coupled with the fact that on 27.08.2024 the plaintiff had moved another application which has been placed on record as Annexure no.7 impressing upon the trial court to summon the documents which were necessary for an effectual adjudication of the controversy between the parties, failing which, the disposal of the application for injunction would be frustrated.

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It is in the aforesaid backdrop, it is urged that the order apparently is bad as it suffers from vice of violation of principles of natural justice and without hearing the plaintiff-appellant, the order impugned in appeals, has been passed.

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Learned Senior Counsel for the appellant has further urged that there is an apparent discrepancy in the order impugned in as much as while considering the three golden ingredients relating to grant of injunction, a detailed inquiry was done in so far as the prima facie case is concerned and though it has referred to the provisions of Section 69 of the Indian Partnership Act and it found that the suit was not quite maintainable, and its upon the said finding, inter alia , the application for injunction was dismissed.

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It is urged that once such a finding had been given then there was no occasion to proceed any further with the suit whereas yet the Court find a date in the suit for further proceedings for 13.09.2024.

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It is also urged that the trial court committed an error in proceedngs with the suit and on the basis of the application moved by the defendants under Order 7 Rule 11 CPC, the said applications were rejected vide impugned order dated 05.04.2025 which is the subject matter of challenge in the connected two revisions.

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It is urged that the aforesaid findings are contradictory and even if taken independent to each other the order rejecting the application for injunction is patently perverse and thus the appeal deserves to be allowed.

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As far as the submission regarding the revision is concerned, it has been urged by the learned Senior Counsel that the provisions of Section 8 were clearly not attracted inasmuch as a person who seeks to invoke Section 8 of the Act of 1996 is required to bring the original arbitration agreement on record. Since there was no original arbitration, accordingly the trial court was justified in rejecting the plea regarding Order 7 Rule 11 CPC and to that extent the order passed in the revisions do not appear to be erroneous, hence the revisions deserves to be dismissed.

¶44

Shri Sankalp Mehrotra, learned counsel appearing for the defendants in the suit (who are respondents in the FAFO and are the revisionist of the two civil revisions) has urged that in so far as the issue relating to injunction is concerned, the trial court was not justified in grant of injunction on 30.05.2024. Once the trial court had formed an opinion that without hearing the defendants of the suit a case for ex parte injunction was not made out, in such circumstances, there was no occasion nor there was any change of circumstance either pleaded nor some material was brought on record to justify that after an ex parte injunction was refused on 13.03.2024 then later has could the injunction be granted on 30.05.2024 except for the alleged emergent circumstances that the courts were due to close for summer recess.

¶45

It has further been pointed out that after the passing of the order dated 30.05.2024, the respondents put in appearance before the trial court and filed their objections both to the application under Order 39 Rule 1 and 2 CPC and also filed a separate application in both the suits under Order 7 Rule 11 CPC.

¶46

It has further been pointed out that as far as the application filed by the appellants dated 13.08.2024 is concerned, the plaintiff of the suit required to summon the partnership deed relating to the year 1987, partnership deed relating to the 2021 and 2023 and documents relating to the removal of the partners and any ancillary documents in respect thereto.

¶47

It is urged that as far as the partnership deed of 2021 and 2023 is concerned, the same was filed by the defendants vide their document list

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bearing paper no.Ga-22 on 04.07.2024.

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It is urged that even the plaintiff alongwith the document list bearing paper No.Ga-9 had filed and copy of the partnership deed relating to the year 2023. It is, thus, urged that as far as the documents are concerned, they were already on record and the application by which the documents were sought to be summoned was nothing but an attempt to perpetuate the grant of ex parte injunction as well as to delay the disposal of the suit.

¶52

It has further been urged by Shri Mehrotra that the suit was fixed for disposal of the application on 14.08.2024 where after the next date was 21.08.2024. On 21.08.2024, the matter was adjourned for 27.08.2024 and prior to that date it was the plaintiff/appellant who had moved certain documents before the court concerned which were directed to be placed on 27.08.2024 which was the date already fixed for orders by the trial court. It is, thus, urged that the contention of the learned counsel for the appellant that there has been any interpolation in the order sheet is not correct nor the said submission can be justified from the material available on record. In the aforesaid circumstances, it is urged that the appeals deserves to be dismissed as the trial court has rightly noticed that the suit was hit by Section 69 of the Partnership Act and even the balance of convenience and irreparable injury was not made out.

¶53

Shri Mehrotra while pressing his civil revisions has urged that once the trial court had already observed in its order dated 27.08.2024 that the suit was hit by Section 69 of the Partnership Act in such circumstances, there was no option for the trial court to have rejected the application under Order 7 Rule 11 CPC as it was on the same premise that the said application had been moved. Thus, the order rejected the application under Order 7 Rule 11 CPC has given rise to a contradictory order and in the given circumstances the revision deserves to be allowed and as a consequence, the plaint of Regular Suit Nos.147 and 148 of 2024 deserve to be rejected.

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

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This Court takes up the issue of injunction first i.e. the subject matter

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of the two appeals and then would revert to the issue involved in the civil revisions.

¶59

It is not disputed between the parties that the suit was instituted on 13.03.2024. It is also not disputed that on the application under Order 39 Rules 1 and 2 CPC notices were issued to the defendants of the suit. It is also not disputed that at that stage when the trial court had exercised its powers under Order 39 Rule 3 CPC, the plaintiff did not assail the said order by taking appropriate remedy as available in law. No order sheet has been brought on record to indicate as to what transpired before the trial court from 13.03.2024 i.e. date when the suit was was instituted till 30.05.2024 when the ex parte injunction was granted by the court upon a application filed under Section 151 CPC

¶60

Be that as it may, even while granting ex parte injunction reasons ought to have been recorded by the trial court as to what prevailed in the mind that once it has not accepted a case for a grant of ex parte injunction thenwhat was that additional material brought on record which justified the grant of ex parte injunction on 30.05.2024. The appellants have also not brought on the record any additional material which was placed before the trial court which made a world of a difference in the factual situation which could have persuaded the trial court to grant a ex parte injunction on 30.05.2024.

¶61

The record further indicates that it is only after the grant of the ex parte injunction that the defendants of the suit came into action and filed their objections before the trial court. It is not disputed that till 14.07.2024 except for the application for injunction and another application seeking summoning of record which was filed a day prior i.e. 13.08.2024 (as stated by the learned Senior Counsel for the appellants) no application was listed for disposal. Primarily, it was the application for injunction which was to be disposed of since the party had already exchanged their pleadings in this regard. On 21.08.2024, again the matter was adjourned for 27.08.2024 for disposal of the injunction application.

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At this stage, this Court finds that if at all there is any interpolation as suggested by the learned Senior Counsel for the appellants the fact

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remains that the said order was known to the appellant and this is being inferred for the reason that on 24.08.2024 i.e. after three days from the last date fixed the plaintiff/appellant himself had filed certain documents before the Court. By introducing two documents on the said date and order was passed indicating that the matter would come up on the date already fixed for orders i.e. 27.08.2024. This order was also known to the plaintiff as it was passed on the basis of the documents filed by the plaintiff himself. In case if the application for summoning of record was so crucial then it should have been seriously pressed coupled with the fact that by then the plaintiff had yet not been heard on merits of the application under Order 39 Rule 1 and 2 CPC. It the appellant was not heard then it was natural for the appellants to have moved an application bringing it to the notice of the Court regarding the aforesaid circumstance at least on 24.08.2024, on which date, they had filed their documents.

¶66

Even assuming if they did not bring this on record or to the notice of the trial Court by 24.08.2024 yet the same could have been brought to the notice of the trial Court on 25/26.08.2024. However, this issue came to be raised only while filing the appeal, inasmuch as an application for stay could have been moved on 27.08.2024 by the plaintiff, a copy of which has been brought on record as Annexure no.7, indicating that the documents were required to be called for before deciding the application for stay. A certified copy of the order dated 27.08.2024 has been provided to the Court for perusal and the same is taken on record indicating that the trial court on 27.08.2024 had passed the detailed order rejecting the application for injunction and it further noted that there after the plaintiff had filed another application bearing paper No.Ga-35 which was fixed for disposal on 13.09.2024. In the aforesaid facts and circumstances the issue of tampering of the order sheet does not find favour with this Court.

¶67

Be that as it may, apparently there is some inconsistency in the manner in which the order sheet has been drawn. This is for the reason that in case the matter was heard on injunction on 21.08.2024 then the order sheet should have clearly indicated the same and that the next date fixed i.e. 27.08.2024 was be for orders but it is not so. Rather, the order sheet indicates that the matter was to come up on 27.08.2024 for disposal of the application bearing paper No.C-6.

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Learned counsel for the defendants (respondents in the appeal and revisionist in the accompanying revision) could not justify or indicate as to when the application under Order 39 Rule 1 and 2 CPC actually came to be heard because there is no mentioned when the parties were heard on the injunction application either on 21.08.2024 or on 27.08.2024. Thus, apparently, the order which has been passed may not have been passed after hearing the parties at least it does not reflect from the record and to that extent the submission of the learned Senior Counsel for the appellants has some substance.

¶71

Since having noticed this aspect of the matter and finding that the order impugned in appeals may not have been passed after affording due opportunity of hearing to the appellants, hence on this ground alone the said order is being set aside. Suffice to state that the Court has not entered into the merits of the ground of appeal or the order dated 27.08.2024 is concerned.

¶72

Leaving all the aforesaid contentious issues open to be taken before the trial court who would decide the injunction application after affording due opportunity of hearing to the parties and ensuring that the application for injunction is decided preferably within a period of three week from the date a copy of this order is placed before the trial court.

¶73

As far as the connected revisions are being concerned, the main thrust of the submission of the learned counsel for the revisionist is that the trial court had prima facie recorded a finding that the suit was hit by Section 69 of the Partnership Act while disposing of the application under Order 39 Rule 1 and 2 CPC and as the said order has been set aside by this Court in appeal, consequently, it will be appropriate that the issue under Order 7 Rule 11 CPC shall also be reheard by the Court and decide it in accordance with law. Needless to say that since the application under Order 7 Rule 11 CPC also contains a plea of Section 8 of the Arbitration and Conciliation Act, 1996 which is of peremptory nature. Hence, the application under Order 7 Rule 11 shall be heard first in point of time and thereafter the application for injunction and both be decided within the time period mentioned above.

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With the aforesaid observations, the appeals are partly allowed so also the revisions and the trial court will decide the matter afresh in light of the observations given hereinabove.

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(Jaspreet Singh,J.)

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January 7, 2026

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ank

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Digitally signed by :- ALI NEWAZ KHAN High Court of Judicature at Allahabad, Lucknow Bench

Mohd. Akmal and others v. Muzammil Hussain

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Mohd. Akmal and others v. Muzammil Hussain

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