SHYAM LAL GUPTA Vs. STATE OF U P

JUDGEMENT

(1.) Heard learned Counsel for the petitioner.

(2.) In this petition the petitioner challenges the appellate court's order whereby the Court below has interfered into trial court's order granting temporary injunction in favour of the petitioner and has set aside the same.

(3.) Admittedly the petitioner received a notice under Section 211 of the U.P. Municipalities Act, Annexure-1 to the supplementary-affidavit stating that the chabutra in front of his house being an encroachment over the road 'patri' be removed within a period of seven days failing which it would be so removed by the Municipality at his costs. Challenging this notice the petitioner moved the civil court with an injunction suit praying for a relief that the defendant Municipal Board be restrained from demolishing the said chabutra which exists in petitioner's land. The plaintiff side by side also moved the Court with a prayer under Order XXXIX, Rules 1 and 2, C.P.C. which was finally heard by the trial court and temporary injunction was granted vide Annexure-2 to the petition. Respondent the Municipal Board went in appeal against the said order and the appellate court has reversed trial court's order stating that petitioner instead of going in a regular suit should have resorted to an appeal under Section 318 of the U.P. Municipalities Act against the said notice. The forum of appeal being available to the plaintiff, the prayer of temporary injunction was refused by the appellate court.