BALESHWAR TYAGI Vs. IIND ADDITIONAL DISTRICT JUDGE MUZAFFARNAGAR

JUDGEMENT

(1.) Mr. H. S. Shukla, learned counsel for the petitioner has assailed the order dated 18th May, 1999 passed by the learned Additional District Judge, Second Court, Muzaffarnagar in Misc. Civil Appeal No. 83 of 1998 on the ground that since both the Courts below have come to a finding that the plaintiffs have not been able to establish a prime facie case and had refused injunction, therefore, no Bank guarantee could be directed to be furnished by the petitioner-defendant. In such circumstances, according to him, there was no application by the plaintiffs for any such order to be passed in the proceedings. Therefore, according to him, the order directing furnishing of the Bank guarantee by the defendant and affirmed by the appellate court, cannot be sustained.

(2.) I have heard the learned counsel at length.

(3.) So far as the order refusing to grant Injunction in favour of the plaintiffs is concerned, the same has not been challenged. It is apparent that both the Courts below have come to a concurrent finding of fact that the plaintiffs have not been able to make out a prima facie case. At the same time, it has come to a finding that the matter is pending decision finally. It has also been recorded a finding of fact there are every likelihood of waste or damage of the fund by reason of operation of the Bank accounts by the defendants since there was no injunction operating. The question as to the right of the parties to operate the Bank account is subject to determination finally in suit. In such circumstances, the Court had come to a finding that in order to secure the ends of justice, the defendants should furnish Bank guarantee to the extent of the amount in fund. This order has since been affirmed by the appellate court. Under Order XXXIX. Rule 1. Clause (a) of the Code of the Civil Procedure, the Court is empowered to grant such order against any of the parties if there is any likelihood if the property in dispute in a suit of being in danger or wasted or damaged or alienated by any of the party to the suit as it may deem fit.