D K MODI Vs. MODI RUBBER

JUDGEMENT

(1.) Heard Mr. Sharad Sharma, the learned Senior Counsel assisted by Mr. Sushail A. Siddiqui, the learned Counsel for the appellant, Mr. Sarvesh Agarwal, the learned Counsel for respondent No. 1, Mr. Jitendra Chaudhary, the learned Counsel for respondent No.3 and Mr. M.S. Bisht, the learned Counsel for the respondent No.6. Cause shown in the delay condonation application is sufficient. The delay in filing the appeal is condoned. The application is allowed. The appeal is treated to have been filed within the period of limitation.

(2.) The present appeal has been filed under Order 43 Rule (1)(r) of the Code of Civil Procedure against the grant of an ex parte injunction dated 10th March, 2010 passed by the Civil Judge (Sr. Div.), Nainital in suit No. 15/2010. One of the submissions made by the learned Senior Counsel for the appellant is that no injunction could have been granted to the plaintiff, where the plaintiff had taken forcible possession of the premises in question. The learned Senior Counsel for the appellant tried to impress upon the Court about an order passed by B.I.F.R., to indicate that the possession of the premises in question had been taken over by the plaintiff forcibly and therefore, the discretionary relief for grant of injunction should not have been granted by the Trial Court.

(3.) This Court, having heard the learned Counsel for the parties, is of the opinion that the appellant should file an appropriate objection before the trial Court annexing such documents, which the defendants wish to rely upon. The question of possession, being a question of fact cannot be considered in an appeal at this stage on the basis of a document, which is not a part of the record of the Trial Court.