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2003 Supreme(All) 171
IN THE HIGH COURT OF ALLAHABAD
N. K. MEHROTRA
URMILA DEVI - Appellant
Versus
NAGAR NIGAM, LUCKNOW - Respondents
CIV. REVN. 167 Of 2001
Decided On : 01/28/2003
N.K.Seth, UMESHVAR PRASAD
The main legal point established in the judgment is that a person in settled possession of the property cannot be dispossessed by the owner except by recourse of law.
Headnote:
Revision - Injunction Application - S. 26-A (1) (2) of the U. P. Urban planning and Development Act, 1973, S. 4 of the U. P. Urban Planning and Development Act, 1993, O. 39, R. 3, C. P. C. - The court found that the plaintiffs had a prima facie case for grant of interim injunction, and the balance of convenience lay in their favor. The court also referenced legal provisions and case law to support the grant of injunction.
Fact of the Case:
The plaintiffs, owners of a premises, sought an injunction against Lucknow Nagar Nigam's attempt to dispossess them from a portion of the property. The trial court refused to grant an ex parte injunction, leading to the revision.
Finding of the Court:
The court found that the plaintiffs had a prima facie case for grant of interim injunction, and the balance of convenience lay in their favor. The court also determined that the impugned order was under O. 39, R. 3, C. P. C., and no appeal lay against that order.
Issues: The main issue was whether the impugned order was legally maintainable and whether the plaintiffs were entitled to an interim injunction.
Ratio Decidendi: The court held that the plaintiffs had a prima facie case for grant of interim injunction, and the balance of convenience lay in their favor. The court also clarified the legal maintainability of the impugned order.
Final Decision: The revision was allowed, and the application for an ad-interim injunction was granted, with the observation that the possession of the plaintiffs over the premises shall not be disturbed except in due course of law during the pendency of the suit.
N. K. MEHROTRA, J.
( 1 ) THIS is a revision u/s. 115, c. P. C. against the order dated 22-8-2001 passed by the Civil Judge (Senior Division), mohanlalganj, Lucknow issuing notice on injunction application filed by the applicants in the Regular Suit No. 144 of 2001 (Smt. Urmila Devi and others V. Nagar Nigam, lucknow) by which the learned Civil Judge has found that there is no justification for granting an ex parte ad interim injunction in favour of the plaintiff and has directed to issue notice fixing 7-9-2001 for disposal of application No. 6-C for ad-interim injunction.
( 2 ) I have heard the learned counsel fpr the parties and have perused the record.
( 3 ) THE case of the plaintiffs is that the plaintiff-revisionists are the owners in possession of the premises No. 292/4-A situated at Tulsidas Marg, known as Victoria street, Lucknow since last over six decades. In a portion of the said premises, the revisionists reside while in a portion thereof, they are running an oil mill under the name and style of "narain Oil Mill" since the year 1945. The said firm of the revisionists was regularly assessed in the Sales Tax Department. It was having fire insurance from phoenix Assurance Co. Ltd. and it was having a telephone number 25105. In support of the said contention the revisionists have filed papers as annexures to the affidavit filed in support of the stay application. It has also been stated on oath that applicant no. 1 who is aged about 75 years, is living in the premises in question ever since her marriage and the applicants Nos. 2, 3 and 4 are living in the premises in question from their very childhood. It has been stated that on 18-8-2001 certain officials/employees of the Lucknow Nagar Nigam came in a truck of Lucknow Nagar Nigam and asked the applicants to vacate a portion of the factory premise and servant quarters built on plot of the land measuring about 3500 sq. fts. on the eastern side and alleged that the said part of land which is in possession of the applicants, belongs to Lucknow Nagar nigam. It has further been stated that those persons had asked the applicants to remove their effects from the part of the premises within a period of three days, failing which they had threatened to demolish it by force. Therefore a suit for permanent injunction was filed by the applicant in the trial Court and alongwith the suit an application for ad interim injunction under O. 39, Rr. 1 and 2 read with S. 151, C. P. C. supported by an affidavit of Kailash Chandra Agarwal was filed. It was also pleaded by the applicant, that Lucknow Nagar Nigam is not vested with the authority or jurisdiction to resort to the provisions of S. 26-A (1) (2) of the U. P. Urban planning and Development Act, 1973. Since nagar Nigam is governed by the provisions of Nagar Mahapalika Adhiniyam and it is not vested with the authority or jurisdiction to take recourse to dispossess the applicant from their properties. It has been pleaded by the plaintiffs/revisionists that the powers under S. 26-A are vested with the authority under U. P. Urban Planning and Development act, 1993 and not the authority under the Nagar Mahapalika Adhiniyam. It has further been pleaded that the property in question is situated under the development area under the said Act and as such the authority means the Development Authority under S. 4 for that area.
( 4 ) ). After hearing the parties, I am of the opinion that from the documents filed by the plaintiffs/revisionists and the unrebutted affidavit of Kailash Chandra agrawal, a prima facie case in favour of the applicants/revisionists for grant of interim injunction is made out. Further since they are already in possession, the balance of convenience also lies in their favour for grant of injunction and in case injunction is not granted, they are bound to suffer irreparable loss and injury. Thus, all the three ingredients for grant of injunction to the plaintiffs exist. In support of their case, the plaintiff-revisionists hav
