ISHWAR Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS is a civil revision under section 115 of the Code of Civil Procedure against the order dated 27.1.2004 passed by the Civil Judge (Senior Division), Lucknow in Misc. Case No. 22 of 2004 (Regular Suit No. 84 of 2002) Ishwar v. State of U.P. and others. The plaintiff filled a suit against the State of U.P. and five others for a decree of declaration that the lease -deed dated 24.3.2003 executed in favour of the defendant No. 4 for the area specifically defined in para -18 of the plaint - as null and void and a decree of permanent injunction commanding the defendant to give effect to the Government Order dated 19.4.1998 alongwith the suit. The plaintiff -revisionist filed an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure for ad -interim injunction in favour of the plaintiff directing the defendant not to allow the defendant No. 4 to undertake mining operation in the area leased out to him as detailed in paragraph 19 of the affidavit.

(2.) AT the same time an application for exemption of requirement of the notice under section 80 of the Code of Civil Procedure was also moved. The learned Civil Judge allowed an application for exemption from requirement of notice under section 80 of the Code of Civil Procedure and did not pass any order on the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure and fixed the date for hearing on the point of territorial jurisdiction.

(3.) AT the same time, the learned Counsel for the plaintiff -revisionist has argued that the learned Civil Judge may in the cases where it appears that the very object of the suit would be defeated by delay, grant injunction by recording the reasons for its opinion. It has also been argued that the learned Civil Judge has accepted the urgency by exempting requirement of notice under section 80 of the Code of Civil Procedure but he has not passed any order on application moved under Order 39, Rules 1 and 2 of the Code of Civil Procedure. In view of the averments in the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure that there is an endanger of environment hazards and ecological imbalance in several area. It was the duty of the State Government to demarcate the environmentally sensitive area as per directions of this Court and the further allegations that as a result the mining of sand from the bank of river Yamuna, the natural process of erosion will be accelerated and further the plaintiff will have to face the threat of recurring flood which will devastate the fields, farms and standing crop leaving him without any means of livelihood. It will be proper to direct that till disposal of the pending application under Order 39, Rules 1 and 2 of the Code of Civil Procedure on merit, the mining operation over the plots mentioned in the application should remain suspended. In view of the above, the Civil Revision is disposed of finally with the direction that the mining operation over the plot mentioned in the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure shall remain suspended till the disposal of the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure. However, it is made clear that this order being ex parte order will not affect the merit of the case and the learned Civil Judge (Senior Division), Lucknow shall be free to decide the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure on the merit of the case expeditiously.