Back
IN THE HIGH COURT OF ALLAHABAD
R. R. YADAV
SATYA PRAKASH - Appellant
Versus
1st ADDITIONAL DISTRICT JUDGE, ETAH DEFENDANTS - Respondents
C. M. W. P. 40938 Of 2000
Decided On : 03/13/2002
temporary injunction - property dispute - Order 39, Rules 1 and 2, CPC - The judgment discusses the principles governing the grant of temporary injunction, the appellate court's jurisdiction to interfere with the trial court's discretion, and the restoration of parties to the status quo ante. The court found that the trial court's grant of temporary injunction was based on sound judicial principles and that the appellate court had transgressed its jurisdiction in substituting its discretion for that of the trial court. The court also directed the contesting respondent to undo the wrong done to the petitioners by demolishing the construction made during the litigation and restoring both parties to the position of status quo ante.
Fact of the Case:
The plaintiffs sought a permanent injunction against the defendants who threatened to demolish walls on their property. The trial court granted temporary injunction, but the appellate court set it aside. The defendants then demolished the walls during the appeal process.
Finding of the Court:
The trial court's grant of temporary injunction was based on sound judicial principles, and the appellate court had transgressed its jurisdiction. The defendants' actions during the appeal process warranted a mandatory injunction to restore the parties to the status quo ante.
Issues: The court considered the discretionary nature of granting temporary injunction, the appellate court's jurisdiction to interfere with the trial court's discretion, and the restoration of parties to the status quo ante.
Ratio Decidendi: The trial court's discretion in granting temporary injunction should not be substituted by the appellate court unless it is found to be unconscionable, perverse, or opposed to sound principles of law and practice. The court also held that the contesting respondent's actions warranted a mandatory injunction to restore the parties to the position of status quo ante.
Final Decision: The writ petition was allowed, the appellate court's order was quashed, and the trial court's order granting temporary injunction was restored. The contesting respondent was directed to demolish the constructions made during the litigation, and both parties were to be put on the position of status quo ante pending litigation.
( 2 ) THE factual matrix of the case necessary to be noticed for disposal of the present writ petition are that suit No. 576 of 1998 was filed by the plaintiff petitioners and one Smt. Har Pyari Devi (who died during the pendency of Misc. Appeal), against the contesting respondents in the Court of Civil Judge (Junior Division) Kasganj, Etah, as the contesting respondent- defendant Ist set threatened to demolish the walls AD, DE and EF which is shown in red ink in the plaint, belonging to the petitioners and defendants IInd set and in their possession to make a passage through it and also threatened to open door and window in these walls. The aforesaid suit was filed on the basis of registered sale deed dated 24-3-1933 executed in favour of their grand father, Ayodhya Prasad and his brother, Shiv Dayal seeking relief of permanent injunction against defendant Ist set who is impleaded as respondent No. 3 in the present petition. On the same date of filing of suit an application supported with affidavit for grant of temporary injunction under Order 39, Rules 1 and 2, CPC was also moved. The learned trial Court granted interim injunction on the date of filing of suit.
( 3 ) THE Plantiff- petitioners also applied for appointment of an Advocate Commissioner for serving the interim injunction and for preparation of spot map which was allowed on the date of interim injunction. The learned Advocate Commissioner served the injunction order and prepared the map and submitted report, Annexure-6 to the writ petition. The Advocate commissioner during his inspection found some portion of the wall, which was part of the house of the plaintiff- petitioners damaged and fresh foundation for raising new constructions and pillars was also found on the spot.
( 4 ) THE defendant Ist set filed counter affidavit before the trial Court stating therein that his predecessors in interest had purchased adjoining part of building on 7-2-1929 and on the basis of which the walls in question are under his ownership as these walls are part of his latrine. It is further averred in the counter affidavit that Eastern and Western walls in dispute are not part of sale deed dated 24-3-1933. A true copy of the counter affidavit filed by defendant Ist set before the trial Court is filed and marked as Annexure-7 to the writ petition.
( 5 ) THE plaintiff-petitioners filed their rejoinder affidavit before the trial Court wherein it is clearly averred that predecessors in interest of plaintiff-petitioners constructed wall AD, DE and EF on their side lying within the boundary shown in sale deed dated 24-3-1933 whereas the wall of lartine was demolished by predecessors in interest of defendants Ist set. They averred that the height of this walls is 14. 2" which can never be height of latrine roof. The Eastern and Western walls shown in the sale-deed dated 7-2-1929 were constructed of "kakaiya bricks" of ancient time whereas the disputed walls were constructed after family settlement by late Sri Mathura Prasad with "gumma bricks" of recent origin, a copy whereof is filed and marked as Annexure-8 to the writ petition.
( 6 ) AFTER hearing the learned counsel for both sides and considering material available on record, the learned Civil Judge (Junior division) confirmed the interim injunction and disposed of the application (6-Ga) by order dated 18-2-1999, a copy whereof is filed and marked as Annexure-9 to the writ petition.
( 7 ) A bare perusal of order dated 18-2-1999 Annexure-9 to the writ petition reveals that the learned trial Court found prima facie case, ba
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
