PATI RAM Vs. VIITH ADDITIONAL DISTRICT JUDGE AZAMGARH

JUDGEMENT

(1.) The order dated 20th August. 1999 passed by the learned Additional District Judge. VIIth Court. Azamgarh in Misc. Civil Appeal No. 310 of 1998 reversing the order dated 17th November, 1998 passed by the learned Civil Judge. Junior Division. Azamgarh in O.S. No. 1285 of 1997 has since been challenged in this petition.

(2.) Mr. U. K. Mishra, learned counsel for the petitioner contends that the impugned order dated 20th August, 1999 could not have been passed restraining the plaintiff from interfering with the possession and his right to rear fish and its enjoyment and or catching the same in view of the provision contained in Order XXXIX, Rule 1 of the Code of Civil Procedure. According to him, the defendant cannot take advantage of Order XXXIX, Rule 2 because of specific provision contained therein particularly in the absence of any contract between the parties. So far as the Order XXXIX, Rule 1 is concerned, the defendant could have fallen back only on clause (a). But in no way redress could have had by the defendant in clause (b) and (c) of Rule 1. As such in the absence of any ingredient within the meaning of clause (a), the order passed by the Appeal Court could not be sustained. Relying on a decision in the case of Kirat Singh and another v. Madho Singh and others, (1979) AWC 296, in which this Court had held that Order 39, Rule 1 did not authorise the Court to restrain the plaintiff at the instance of the defendant unless there is a finding that the property in dispute was in danger of being wasted, damaged or alienated by any party to the suit. Mr. Mishra had also relied on the decision in the case of Abdul Gaffar v. State of U. P. and others. 1998 (1) AWC 706 in order to contend that there cannot be any renewal of lease through or to private negotiation. According to him, the lease was renewed through private negotiators and as such the defendant could not claim any right on the basis thereof. Thus, the impugned order cannot be sustained.

(3.) Mr. I. R. Singh, learned counsel for the opposite party on the other hand contends that the plaintiff did not pray for any declaration of right in his favour except that he has easement right over the suit property. He has not asked for any declaration that the lease granted in favour of the defendant is invalid and cannot be acted upon. As such, he cannot maintain the suit. He further contends that the Appeal Court had come to a finding that there was lease executed in favour of the defendant which had since been registered and therefore, the order of injunction has been rightly passed. He then contends that there are ingredients to show that the present case comes within the scope and ambit of clause 1 (a) of Rule 1 of Order XXXIX of the Code of Civil Procedure. On these grounds, he prays that the petition should be dismissed.