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2015 Supreme(All) 2605
ALLAHABAD HIGH COURT
Ashwani Kumar Mishra, J.
Abdul Quddus - Appellant
Versus
Zameel Akhtar & 11 Others - Respondent
Writ - C No. - 11760 of 2015
Decided On : 25-02-2015
For the Petitioner:- Sanjeev Singh
For the Respondent:- Kuldeep K. Srivastava
The main legal point established in the judgment is that the purpose of an application for appointing a survey commission must be to ascertain the factual situation for the grant of interim injunction, and not to verify ingredients for an application under Order-39 Rule-2 A CPC.
Headnote:
Survey Commission - Interim Injunction - The court found that the application for appointing a survey commission was not to ascertain factual situation for grant of interim injunction but to verify ingredients for an application under Order-39 Rule-2 A CPC. The appellate court's rejection of the application was found to be without error of jurisdiction or perversity.
Fact of the Case:
The plaintiff-petitioner filed an application for appointing a survey commission to ascertain the allegations of the petitioner that the defendants raised constructions in violation of the injunction.
Finding of the Court:
The court found that the purpose of the application was not to ascertain factual situation for grant of interim injunction but to verify ingredients for an application under Order-39 Rule-2 A CPC. The court concluded that the rejection of the application by the appellate court was without error of jurisdiction or perversity.
Issues: The issue was whether the application for appointing a survey commission was filed with the intent to delay the proceedings or to ascertain the factual situation for grant of interim injunction.
Ratio Decidendi: The court's decision was based on the finding that the application was not for the grant of interim injunction but to verify ingredients for an application under Order-39 Rule-2 A CPC, and therefore the rejection of the application was justified.
Final Decision: The writ petition failed and was consigned to records.
Ashwani Kumar Mishra,J.
It appears that against the refusal by the trial court to grant temporary injunction, plaintiff-petitioner has filed Misc. Appeal, which is pending consideration. During the pedency of the appeal, an interim protection was granted by this Court and direction has been issued to conclude the proceedings of appeal.
2. Application appears to have been filed by the petitioner for appointing a survey commission, in order to ascertain the allegations of the petitioner that the defendants, in teeth of the injunction, have raised certain constructions. The appellate court rejected this application by observing that the proceedings pending before it are under Order-43 Rule-1 CPC , for determining the question as to whether any interim injunction is to be granted to the plaintiff-petitioner or not ,and no proceedings under Order-39 Rule 2A CPC are under consideration. The appellate court, therefore, in such circumstances, has rejected the application .
3. Learned counsel for the petitioner submits that the trial court had also observedthat the situation on the spot was required to be verified and, therefore, survey commission be appointed.
4. Learned counsel for the respondents, on the other hand, submits that the application is being filed only with an intent to delay the proceedings.
5. Considering the above, this Court finds that the object of filing the application by the plaintiff-petitioner, is not to ascertain any factual situation for grant of interim injunction but is rather to verify ingredients, which may give rise to an application under Order-39 Rule-2 A CPC. Since the proceedings are in respect of grant of injunction, therefore, if the appellate court has rejected the application, this court finds no error of jurisdiction or perversity in the order impugned, so as to require any interference.
6. Writ petition consequently fails and is consigned to records.
