SAMARJEET PATEL Vs. ADDITIONAL DISTT JUDGE

JUDGEMENT

(1.) R. K. Mahajan, J. This is a writ peti tion under Article 226 of the Constitution of India praying for quashing of judgment and order dated 29-1-1997 passed by Addi tional District Judge/special Judge, Al lahabad in Misc. Appeal No. 327 of 19% Vilkish Begum and others v. Samarjeet Patel.

(2.) THIS writ petition has arisen from the following facts. Admittedly the case of the plaintiff-petitioner is that he is the owner of the land as described in para No. 2 of the writ petition and he sold 1/5 th of land on 18-6-1980 for a consideration of Rs. 6, 500 to defendant No. 3 and the possession was also delivered to him. The petitioner's case is that he never executed any sale-deed in the year 1985 in favour of respondent No. 1 and 2 at all. It is case of forgery and action of some imposter. It is also admitted case that the plaintiff has given remaining land on lease, as mentioned in para No. 4 of the writ petition, when the respondent No. 1 approached the plaintiff as he wanted to start brick kiln for Rs. 200 per month. The petitioner was receiving lease money but off late no money has been paid and the brick kiln was also not in operation. It is also alleged in the petition that the petitioner has taken some advance for selling land to the defendant-respondent No. 3 by un registered agreement. The simple prayer of the petitioner is that a notice of caveat was received on 18-6-1996 by him before the filing of the suit. He made an enquiry and he came to know after obtaining certified copy from the Sub-Registrar Office that the sale-deed has been executed either by forgery or by imposter. He filed an application under Order XXXIX, Rules 1 and 2 that the respondents be restrained not to challenge the nature of the land and also for running brick kiln. The lower court granted injunc tion on 12-12- 1996. The same is quoted with advantage: "heard the plaintiff's Counsel and perused the record. According to the plaintiff the defendants were lessee of the disputed land which belongs to the plaintiff that the disputed land has fraudulent ly been sold in favour of Smt. Bilkish Begum the defendant No. 1 by some person in place of the plaintiff. The plaintiff never executed the alleged sale-deed. Now on the basis of forged sale-deed the defendant No. 1 and 2 want to change the nature of the suit by running 'bhatta' over it. The plaintiff has filed the extract of khatauni and sale-deed. From the facts of the case it is just and fit that the nature of the land should not be changed otherwise it would lead to multiplicity and com plicity. Issue notice to the opposite parties fixing 1-1-1997 for objection and disposal. In the mean time, the parties shall maintain status quo on the spot and not change the nature of the property in suit. The plaintiff is directed to comply with the provisions of Order XXXIX, Rule 3 CPC forthwith. "

(3.) THE legislature in its wisdom thought that in case of emergent cases if a court is satisfied ex-parte injunction is to be granted, notice has to be issued completing all the formalities, as required, then the legislature also expressed the intention that the injunction application so far as possible is to be disposed of within thirty days. Even otherwise it is disposed of expeditiously. If it has been granted without giving notice to the opposite party there is remedy under Order XXXIX, Rule 4, CPC for discharge, setting aside, variation of injunction order. It is now settled principle of law that where the particular procedure has been prescribed Statutory State that has to be followed unless mala fides or other excep tional circumstances are pleaded. Each base has to be adjudged on its facts and substances.