Nasir Hussain vs Ghasita Ahmad

B.S. Verma, J.—Heard learned Counsel for the parties.

By means of this writ petition, the Petitioner has sought a writ in the nature of certiorari quashing the judgment and order dated 24-5-2011 passed by the District Judge, Haridwar in Misc. Civil Appeal No. 40 of 2011 (Annexure-1 to the writ petition) and well as quashing the order dated 29-3-2011 passed by Civil Judge (Junior Division) Haridwar in Civil Suit No. 363 of 2010 (Annexure No. 2 to the petition).

By order dated 29-3-2011, the learned trial court allowed the temporary injunction application of the Plaintiff-Respondent and the Petitioner-Defendant was restrained to interfere in the property in question. The appeal under Order 41, Rule 1(r) CPC preferred against the order dated 29-3-2011 has been dismissed by the appellate Court.

The Respondent herein filed Civil Suit No. 363 of 2010, Ghasita Ahmad v. Nasir Hussain in the court of the Civil Judge (Junior Division) Haridwar alleging therein that the Plaintiff is Bhumidhar with transferable rights over the suit property and has developed grove thereon and he has been cultivating the land continuously and that the Defendant-Petitioner is trying to encroach upon the suit property without any authority. The Plaintiff filed the suit for permanent injunction. Along with the suit, the Respondent-Plaintiff filed an application for temporary injunction under Order 39, Rules 1 and 2 read with Section 151 CPC to restrain the Defendant from interfering in peaceful possession of the Plaintiff-Respondent.

The learned trial court after hearing both the parties came to the conclusion that the prima facie case is made out in favour of the Plaintiff and points of the balance of convenience and irreparable loss are in his favour and accordingly granted temporary injunction in favour of the Respondent vide order dated 29-3-2011. Aggrieved, the Defendant-Petitioner filed Misc. Civil Appeal before the appellate Court. The appellate Court after hearing both the parties did not find favour with the Appellant and dismissed the appeal by the order impugned dated 24-5-2011, which gave rise to the present writ petition.

In the writ petition, in paragraph No. 9 it is stated that the learned Civil Judge(Junior Division) has passed the order on the temporary injunction application in an arbitrary and illegal manner on 29-3-2011. Prior to that, on 18-3-2011, the land in question was sold out and copy of sale deeds have been annexed as Annexure-8 and Annexure-9 to the writ petition. This fact has not been disputed in the counter affidavit filed by the Respondent-Plaintiff.

It has been stated in paragraph No. 12 of the counter affidavit that application for temporary injunction was moved on 8-11-2010 and the property was sold on 18-3-2011.

Learned Counsel for the Petitioner has submitted that this fact came to the knowledge of the Defendant after passing the impugned order. Even during the pendency of Misc. Appeal, this fact was not within the knowledge of the Defendant and that this fact of selling of land has not been disclosed by the Respondent before the courts below.

A perusal of the record reveals that the petitoner is the son of the Respondent and they are son and father. It appears that the Respondent is a recorded tenure holder-Bhumidhar with transferable rights in the revenue records. The Petitioner claims himself to be owner on the basis of a Will allegedly executed by the grandfather of the Petitioner in favour of his mother, but nowhere the details of the said will have been given in the memo of writ petition.

It also appears that the Petitioner is not a recorded tenure holder. Counsel for the Respondent seeks permission to withdraw the suit.

The contention of the learned Counsel for the Petitioner is that cause of action does not survive to the Respondent.

In this writ petition, the order passed on the application for temporary injunction by the trial court and the appellate court are under challenge.

In the facts and circumstances of the case, the Petitioner may move application before the trial court under Order 7, Rule 11(d) of the CPC for rejection of plaint, if the plaint does not disclose a cause of action, if so advised, and if the Respondent wants to withdraw his suit, he may also move application before the trial court.

So far as the interim order is concerned, on the date of the suit, the Respondent-Plaintiff was prima facie Bhumidhar of the land in question and if the land was transferred during the pendency of the suit, the purchaser has a right to implead himself in view of the provisions of Order 22, Rule 10 C.P.C., which reads as under:

Procedure in case of assignment before final order in suit.-(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of Sub-rule (1).

So far as the impugned orders passed by the two courts below are concerned, I find that the learned trial court has considered the three essential ingredients of grant of temporary injunction- prima facie case, balance of convenience and irreparable loss and the appellate court has also recorded its independent finding on that counts and has upheld the order passed by the trial Court. In my view, the impugned orders do not suffer manifest error of law or jurisdictional error.

In the above peculiar facts and circumstances of the case when the land in question has admittedly been sold to a third person by the Plaintiff-Respondent during the pendency of the suit and since the impugned orders pertain to the order passed by the courts below on the application for temporary injunction, in my view, the right of purchaser cannot be taken up in this writ petition.

For the reasons and discussion above, the writ petition is devoid of merit and is liable to be dismissed outright.

The writ petition is dismissed. Costs easy.

All pending applications stand disposed of.