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2003 Supreme(All) 2483
IN THE HIGH COURT OF ALLAHABAD
N. K. Mehrotra, J.
GURU DUTT - Appellant
Versus
ANUJ KHATRI - Respondents
Civil Revision 241 Of 2003
Decided On : 11/14/2003
ANANT CHAUDHARY, ASEEM CHANDRA, PRITISH KUMAR, UMESH CHANDRA, VIKAS SINGH
The main legal point established is the court's authority to intervene under Section 115, C. P. C. when a subordinate court fails to exercise its jurisdiction or when there is imminent danger to a party's possession, leading to the modification of the impugned order.
Headnote:
Revision - Civil Procedure - Order XXXIX Rule 1, C. P. C. - Section 115, C. P. C. - [Order XXXIX Rule 1, C. P. C.] - [Section 115, C. P. C.]
Fact of the Case:
The plaintiff filed a suit and an application for ad interim injunction against the defendant for interfering with the plaintiff's possession of a plot. The trial court issued notice instead of granting injunction, leading to the revision.
Finding of the Court:
The court found that the trial court failed to exercise its jurisdiction vested in it and there was imminent danger to the plaintiff's possession over the disputed plot. The court allowed the revision, modified the impugned order, and directed the trial court to decide the pending injunction application expeditiously.
Issues: Failure of the trial court to exercise jurisdiction vested in it, imminent danger to the plaintiff's possession, and the need for expeditious decision on the pending injunction application.
Ratio Decidendi: The court's decision was based on the failure of the trial court to exercise its jurisdiction and the imminent danger to the plaintiff's possession, leading to the allowance of the revision and modification of the impugned order.
Final Decision: The revision was allowed, the impugned order was modified to protect the plaintiff's possession, and the trial court was directed to decide the pending injunction application expeditiously.
( 1 ) THIS is a Revision under Section 115 of the Code of Civil Procedure against the order dated 14. 8. 2003, passed by the Civil Judge (Senior Division), Malihabad in Regular Suit No. 320 of 2003, Guru Dutt v. Anuj Khatri and Anr. , by which the learned trial court has issued notice against the opposite parties on application for ad interim injunction under Order XXXIX Rules 1 and 2, C. P. C.
( 2 ) THE brief facts of the case are that the defendant opposite party No. 2 is a registered cooperative Housing Society and the object of the society is to acquire land and establish colony for its members known as Sindhu Nagar Yojana. The plot in suit was allotted to Smt. Lajwanti devi on 10. 11. 1967 by the opposite party No. 2, There was a condition in the deed of transfer that the allottee Smt. Lajwanti Devi was to raise the construction over the plot within 24 months. Smt. Lajwanti Devi failed to raise construction. The Society passed resolution to forfeit the plot no. A-22 and informed the Deputy Registrar Housing who approved the resolution on 29. 4. 1995. The opposite party No. 2 allotted the plot to the revisionist on 26. 6. 1995 and till then he is in possession Smt. Lajwanti Devi had executed Will in favour of Tilak Raj Khatri the father of the opposite party No. 1. Since the possession of the plaintiff/ revisionist was being interfered by the opposite party No. 1 Anuj Khatri son of Tilak Raj Khatri on the basis of the Will in favour of his father, the Suit No. 320 of 2003 was filed by the plaintiff/revisionist along with the application for ad interim injunction.
( 3 ) THE learned trial court instead of granting injunction simply issued notice. It is against this order the instant revision has been filed.
( 4 ) THE learned counsel for the revisionist has argued that plot in question which was earlier allotted in favour of Smt. Lajwanti was legally forfeited by the society opposite party No. 2 and after forfeiture, Smt. Lajwanti Devi has no right to execute Will in favour of Tilak Raj Khatri, father of opposite party No. 1 and he was legally allotted the plot in question by the society and since then he is in possession and he has raised boundary wall. Therefore, on the strength of this evidence the learned trial court must have granted ad interim injunction. It has been argued that the learned trial court has failed to exercise jurisdiction which is vested in It. In support of its contention the learned counsel for the revisionist has referred the judgment in Smt. Urmila Devi v. Nagar Nigam, Lucknow, 2003 (3) AWC 1715 (SC) : AIR 2003 All 158. This decision relates to an order which was passed before the amendment in Section 115, C. P. C. by the Parliament by amending Act of 1999 with effect from 1. 7. 2002. The learned counsel for the opposite parties has raised preliminary objection against the maintainability of the revision, learned counsel for the opposite party No. 1 has referred a judgment of this Court in Civil Revision No. 237 of 2003, rafiullah Khan v. Khalid Umar and Ors. In this case the impugned order was an order under order XXXIX Rule 4, C. P. C. by which earlier injunction order was modified. Therefore, this decision referred to by the learned counsel for the opposite parties is of no help to him.
( 5 ) LEARNED counsel for the opposite party No. 1 has also referred a judgment of the Supreme court in Shiv Shakti Cooperative Housing Society, Nugpur v. Swaraj Developer and Ors. In this judgment the effect of the proviso to Section 115, C. P. C. added by the Amendment Act No. 46 of 1999 has been discussed. While in State of U. P. Section 115, C. P. C. has been substituted by a new provision by U. P. Ordinance No. 5 of 2003 and further by U. P. Ordinance No. 26 of 2003. Now the relevant provision under Section 115, C. P. C. as applicable in State of U. P. Is as follows :
"115. Revision.-- (1) A superior court may revise an order passed in a case decided in an original suit or other proceedings
