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Judgment
Hon''ble Sanjay Misra, J.—Heard Sri Krishna Kumar Srivastava, learned counsel for the petitioner-plaintiff and Sri Siddharth Verma, learned counsel for the respondent-defendant.
The grievance of the petitioner is that in Suit No. 2236 of 2010 (Gaya Prasad Dwivedi Vs. Krishna Avtar Bajpai) the Court of Civil Judge (Sr. Division) Kanpur Nagar, Room No.21, had allowed the temporary injunction application (Paper No.6-Ga) on 02.02.2011 and directed that the plaintiff should not be evicted otherwise than in accordance with law. Feeling aggrieved the defendant-respondent filed Misc. Appeal No.21 of 2011 (Krishna Avtar Bajpai Vs. Gaya Prasad Dubey) wherein by the impugned judgment and order dated 30.09.2011 the Appellate Court has allowed the appeal of the defendant-respondent, set aside the injunction order dated 02.02.2011 and remitted the matter back to the Trial Court and directed the parties to appear on the date fixed.
According to learned counsel for the petitioner, the lower Appellate Court has committed an illegality inasmuch as when a temporary injunction order was granted by the Trial Court it ought to have ensured that the status of the property in question is not changed in any manner whatsoever for which he has placed reliance on a decision of the Supreme Court in the case of "Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass", reported in AIR 2005 SC 104.
Having considered the submission of learned counsel for the parties and perused the record, it appears that the First Appellate Court was of the view that the Trial Court has not exercised its jurisdiction properly inasmuch as it has neither issued a positive injunction nor refused the temporary injunction but in the operative part of the judgment held that the defendant should not be evicted against law. From a perusal of the order passed by the Trial Court it appears that the Trial Court has neither granted a positive injunction to the plaintiff nor he has refused such injunction. He appears to have taken a middle path akin to a statement of law that the defendant should not be evicted against law. The First Appellate Court has rightly set aside such order on the ground that the Trial Court has failed to exercise jurisdiction vested in it.
Insofar as the decision in the case of Maharwal Khewaji Trust (Supra) is concerned clearly it has no application here since in that case the status was to be maintained during pendency of an appeal. In the present case the appeal is not pending but has been decided on merits.
Under such circumstances, it would be appropriate that the Trial Court should consider the temporary injunction application (Paper No.6-Ga) expeditiously and without any delay more particularly when learned counsel for both the parties state that objections in the temporary injunction application have already been filed and are available on record of the Suit.
For the aforesaid reasons, without interfering in the Appellate Order it would be appropriate that the Trial Court should decide the temporary injunction application as expeditiously as possible without granting any unreasonable adjournment to either of the parties.
The writ petition is accordingly disposed of.
No order is passed as to costs.