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2016 Supreme(All) 2290
ALLAHABAD HIGH COURT
Ram Surat Ram (Maurya), J.
Shamiullah And Anr. - Appellant
Versus
Madan Gopal - Respondent
Matters Under Article 227 No. - 2279 of 2016
Decided On : 08-04-2016
For the Petitioner: Javed Husain Khan, Gulrez Khan.
Concealment of material facts in a suit for injunction can lead to the dismissal of the application under Order 39 Rule 2 A CPC.
Headnote:
Order 39 Rule 2 A CPC - Interim Injunction - The court dismissed the application under Order 39 Rule 2 A CPC filed by the petitioners, as it found that the suit was filed concealing the material fact that there was already construction up to plinth level on the disputed land before obtaining the sale deed of the petitioners.
Fact of the Case:
The petitioners filed a suit for permanent injunction against the defendant, and an interim order was granted to the petitioners. The trial court found that there was construction on the disputed land before the suit was filed, and dismissed the application under Order 39 Rule 2 A CPC. The appellate court affirmed the trial court's decision.
Finding of the Court:
The court found that the suit was filed concealing the material fact of existing construction on the disputed land, and therefore, no action under Order 39 Rule 2 A CPC could be taken against the defendant. The court also noted that the suit had been dismissed by the lower appellate court, and the interim injunction had lost its efficacy after the dismissal of the suit.
Issues: The main issue was whether the petitioners concealed the material fact of existing construction on the disputed land when filing the suit for permanent injunction.
Ratio Decidendi: The court's decision was influenced by the finding that the suit was filed concealing the material fact of existing construction on the disputed land, which led to the dismissal of the application under Order 39 Rule 2 A CPC.
Final Decision: The court dismissed the petition, stating that no interference was required, and found that the petition had no merit.
Ram Surat Ram (Maurya),J.
Heard Sri Gulrez Khan for the petitioners.
2. This petition has been filed under Article 227 against the order of Civil Judge (Jr. Division) dated 14.5.2013 and Additional District Judge dated 19.2.2016.
3. By the impugned order application under Order 39 Rule 2 A CPC filed by the petitioners has been dismissed.
4. The petitioners filed a suit for permanent injunction restraining defendant from raising any construction and interfering in their possession over the land in dispute. In this suit an interim order was granted to the petitioners on 22.5.1984. It is alleged that the suit was decreed by the trial court on 3.1.2003. However, the decree of the trail court was reversed by the appellate court in civil appeal and second appeal filed by the petitioners is pending before this Court. In the meantime, on the allegation that in violation of interim order the defendant has raised construction over the disputed land, the petitioners filed an application before the trial court for taking action against the defendant under Order 39, Rule 2 CPC. The trial court after hearing the parties found that Shamiullah, PW-1 in his statement has admitted that before filing the suit there has been construction therefore no action under Order 39, Rule 2 A can be taken against the defendant. The appeal filed by the petitioners has also been dismissed affirming the aforesaid order.
5. The counsel for the petitioners submits that petitioners in their statement has no where admitted that construction is lying on the spot before filing the suit. The trial court placed reliance upon the statement recorded in the proceeding under Order 39, Rule 2 A (40 ka -2) in which there is no such admission. Thus the finding of the trial court is based upon conjuncture and surmises and is liable to be set aside. The defendant has violated the interim order and raised construction, therefore construction is liable to be demolished.
6. I have considered the arguments of the counsel for the petitioners.
7. It is admitted that at present the suit of the petitioners has already dismissed by the lower appellate court. Interim injunction granted by the trial court has merged with the final order passed in the appeal. After dismissal of suit, interim order passed in it has lost its efficacy and is not liable to be enforced. A perusal of the statement of Shamiullah, PW-1 recorded in O.S. No. 76 of 1986 shows that in his statement, he has clearly stated that construction is lying on the spot up to plinth level over the land ie. 42 feet long and 20 feet wide before obtaining the sale deed of the petitioners. Thus it appears that suit was filed concealing the material fact that there was already construction up to plinth level. In such circumstances, the finding recorded by the trial court cannot be said to be perverse.
8. No interference is required by this Court. Petition has no merit and is dismissed.
