Writ application challenging appellate order dismissing appeal in injunction suit. Court refused to appoint pleader commissioner or interfere, relying on lower courts' findings regarding plaintiff's clean hands.
Application dismissed; no appointment of pleader commissioner made.
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IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13932 of 2014
=========================================================== Sri Anil Kumar Gupta S/o late Madan Kishore Prasad, R/o Mohalla- Mithapur, P.S.- Jakanpur, District- Patna .... .... Petitioner Versus 1. Sri Anil Kumar, S/o late Rajendra Prasad, R/o Mohalla- Mithapur, P.S.Jakanpur, District- Patna 2. Sri Alok Kumar Gupta, S/o Madan Kishore Prasad, R/o Mohalla- Mithapur, P.S.Jakanpur, District- Patna .. .... Respondents =========================================================== Appearance : For the Petitioner/s : Mr. Prakash Kumar For the Respondent/s : Mr. =========================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT Date: 06-10-2016
Heard the learned counsel for the petitioner and
the learned counsel for the respondents.
This application has been filed against the order passed by the appellate court below in appeal, against the order refusing the injunction as prayed by the plaintiff in the suit by the trial court. The appellate court below, in the impugned order, has affirmed the findings of the trial court and dismissed the appeal.
The learned counsel for the petitioner has submitted that the learned court below ought to have appointed a pleader commissioner for taking measurement of land and it has also been prayed that some observation in this regard be made by this Court. The learned counsel for the petitioner has also placed the impugned order passed by the appellate court below in order to persuade this Court to take a different view in the matter.
Mr.J.S.Arora, learned senior counsel for the
Patna High Court CWJC No.13932 of 2014 dt.06-10-2016
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respondents has supported the impugned order.
After considering the submissions and perusal of the orders passed by both the courts below, this Court finds that the matter has been concluded by concurrent finding of fact in the injunction matter by both the courts below, where it has also been pointed out that the plaintiff has not approached the court with clean hands. It does not appear from the material on record that the plaintiff ever made any prayer for appointment of a pleader commissioner for local inspection or measurement of the suit land. In view of the dictum as laid down by the apex court in the case of The Managing Director (MIG) Hindustan Aeronantics Ltd. Balanagar, Hyderabad Vs. Ajit Prasad Tarway, Manager (Purchase and Store) Hindustan Aeronantics Ltd. Balanagar , Hyderabad, AIR 1973 SC 76 and in the case of The Municipal Corporation of Delhi Vs. Suresh Chandra Jaipuria , AIR 1976 SC 2621, this Court is not inclined to interfere in the impugned order as the findings have been recorded on the consideration of the materials on record and there is no perversity or unreasonableness in any manner in the same.
This application is, accordingly, dismissed.
(V. Nath, J)
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2 issues framed by the court
Whether this Court should interfere with the appellate court's dismissal of the appeal for appointment of a pleader commissioner in an injunction suit.
Whether the lower courts' concurrent finding of fact regarding the plaintiff's lack of clean hands prevents any intervention.
Colour shows how this judgement treated each authority
Sri Anil Kumar Gupta
Sri Anil Kumar
Sri Alok Kumar Gupta
V. Nath
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
