VIVEK KUMAR GUPTA Vs. IIIRD A D J

JUDGEMENT

(1.) HEARD learned counsel for the petitioner, Sri D.P.Bahadur learned counsel for respondent nos. 2 to 5 and Sri Y.P.Singh learned counsel for respondent no.5. This writ petition is directed against a temporary injunction order passed in O.S. no.43 of 1983 which at present is pending before 3rd A.D.J. Kanpur Nagar. Initially in the suit which was filed by respondents 2 to 4 Smt. Malika Rani and Ors. against respondent no.5 M/s. Moonna Lal and Sons, (for specific performance of an alleged agreement for sale) petitioner was not made a party. In the year of 1987 a temporary injunction application was filed on which an ad interim temporary injunction was granted restraining the defendant respondent no.5 from changing the nature of the property in dispute. After few days an application for impleadment of the petitioner was filed by the plaintiff and it was also prayed that injunction order might be made applicable upon him also. Trial Court directed that the temporary injunction order must be applicable upon the petitioner also. The said order was passed on 28.05.1987 against which this writ petition was filed. In this writ petition a detailed interim order was passed on 17.06.1987 staying operation of the order dated 28.5.1987 till further order of the Court. Learned counsel for the petitioner states that after stay from this Court petitioner completed the construction. Order dated 17.6.1987 passed in this writ petition was subjected to a S.L.P. before the Supreme Court which was subsequently converted into Civil Appeal no.1196 of 1999 and was decided on 16.2.1990, photo copy of the certified copy of said judgment has been placed on record by learned counsel for the respondent nos. 2 to 4. Through the said judgment Supreme Court set aside the order of the High Court (dated 17.06.1987) and Vivek Kumar Gupta (petitioner) was directed to be impleaded as party to the suit. Thereafter, petitioner was made party in the suit. The case of the petitioner is that in the year 1985 a part of the property in dispute in the suit which (part) was in the form of two dilapidated shops was allotted to him and thereafter respondent no.5 executed perpetual sub lease in his favour. It is unfortunate that the suit is still pending. Learned counsel for the petitioner states that after the G.O. of 1.12.1998 petitioner, respondent nos. 2 to 4 and respondent no.5 applied for conversion of the lease into free hold (property in dispute is Nazul land which was on lease with respondent no.5 on behalf of the Government and the constructions standing thereupon, were made by respondent no.5.) Learned counsel for the petitioner further states that in the year 2003 the portion in occupation of the petitioner has been converted into free hold in his name. Learned counsel further states that in view of this suit has become infructuous to the extent of the property in possession of the petitioner and against the petitioner. There is absolutely no occasion to decide this question in this writ petition which has got very limited scope. All these questions may be decided by the trial Court in the suit if properly raised. Learned counsel for the petitioner states that some application to that effect has also been fled. Accordingly, as nothing substantial survives in this writ petition hence there is no need to decide the correctness or otherwise of the impugned order. The plea of non maintainability of the suit against the petitioner in respect of that part of the property in dispute in the suit which has been converted into free hold in his name may be considered by the trial court, if raised properly. For the said purpose if some application has been filed then the same may be decided otherwise petitioner may file requisite application seeking amendment in the written statement. with the above observations writ petition is disposed of.