Disposed

M/S Chetak Granites v. Gangaram and Ors.

Rajasthan HC16 Jan 2015CMA/5169/2011

Case brief

AI extract

What is this about?

In this S.B. Civil Misc. Appeal, the High Court disposed of a challenge to an order declining a temporary injunction. The Court directed the trial court to decide the pending application for return of suit documents (Order 7 Rule 11 CPC) within one month and upheld the existing stay order on the property.

What did the court decide?

Direction to trial court to decide Order 7 Rule 11 CPC application within one month; existing ad-interim stay order to remain operative.

M/S Chetak Granites Vs Gangaram and Ors. — Property and Title | Rajasthan HC (2015)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. CIVIL MISC. APPEAL No.5169/2011 M/s. Chetak Granites V/s. Gangaram & Ors.

Date of Judgment

:::

16.01.2015

PRESENT

HON'BLE MR. JUSTICE P.K. LOHRA

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Mr. DLR Vyas, for Mr. B.M. Bohra, for the appellant. Mr. Mahesh Joshi, for respondents No.1, 2, 11 to 13. Mr. Manoj Bohra, for respondent Nos.5, 6 and 7. Mr. Arvind Shrimali, for respondent No.14.

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The appellant-plaintiff has laid this appeal under Order 43 Rule 1(r) CPC challenging the impugned order dated 16.11.2011 whereby, the learned Additional District Judge (Fast Track) No.1 Bhilwara (learned trial Court) has declined the relief of ad-interim temporary injunction to him in a suit for cancellation of sale-deed.

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From the order dated 16.11.2011, it is clearly borne out that the learned trial Court has not decided application for temporary injunction and an application under Order 7 Rule 11 CPC laid on behalf of respondentdefendants is also pending consideration.

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At the threshold, when the matter came up before this Court on 13^th January, 2012, while issuing notices to respondents, the Court was pleased to pass interim order in following terms :-

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“In the meanwhile, the petitioner shall not be dispossessed from the land in question.”

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The stay order is still operative.

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Learned counsel for the appellant submits that the learned trial Court has yet not decided the application for temporary injunction and the same is still pending before learned court below. He, therefore, urged that requisite directions may be issued to the learned trial Court for deciding the application and till then the ad-interim stay order granted by this Court be continued.

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Per contra, learned counsel for the respondents would contend that the appellant has not made any endeavour to file certified copy of the interim stay order granted by this Court before learned Court below and matter is deferred by the learned trial Court on one pretext or other asking the appellant to place on record certified copy of the order. With these submissions, learned counsel submits that it is not in fitness of things to continue the adinterim stay order granted by this Court. Learned counsel for the respondents have submitted in unison that application under Order 7 Rule 11 CPC is also pending consideration before the learned Court below, wherein objection is raised that the suit is barred by law.

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Having heard learned counsel for the parties, in my opinion, it is not desirable to examine the legality and propriety of the impugned order, more particularly, when the maintainability of the suit itself is under cloud. It is trite that a Court of original jurisdiction is required to decide first the question of maintainability of the suit if application under Order 7 Rule 11 CPC is made on behalf of the defendant before proceeding to decide prayer for interim relief under Order 39 Rules 1 & 2 CPC.

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In this view of the matter, the present appeal is disposed of with a direction to the learned trial court to decide the application of the defendants under Order 7 Rule 11 CPC as expeditiously as possible preferably within a period of one month from the date of production of certified copy of this order. The interim order granted by this Court dated 13.01.2012 shall remain in currency till disposal of applciation under Order 7 Rule 11 CPC. It is made clear that, while deciding application under Order 7 Rule 11 CPC, the learned trial Court shall not take into account the interim order granted by this Court and decide the same dispassionately uninfluenced by the said order.

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(P.K. LOHRA), J.

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a.asopa/-

M/S Chetak Granites v. Gangaram and Ors.

Case brief

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M/S Chetak Granites v. Gangaram and Ors.

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