BALMUKUND SHARMA Vs. BALKRISHNA SHARMA UPADHYAY

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution challenges the order dated 27.11.2013 whereby the court below has allowed the application preferred under Order 19 Rule1 & 2 C.P.C. filed by the plaintiff and permitted him to cross-examine the persons who have filed their affidavits along with reply of application filed under Order 39 Rule 1 & 2 C.P.C.

(2.) The plaintiff / respondent No.1 filed a suit for declaration of title and permanent injunction against the petitioner / defendant No.1. The plaintiff stated that he is the owner of the house having half share and similarly his mother was having half share in the house. In her life time, mother Smt. Ganga Devi had executed a registered will dated 28.07.2007 in favour of the plaintiff, therefore, after the death of his mother, he became exclusive owner of the suit property. Accordingly, relief was claimed that plaintiff be declared as an exclusive owner and in possession of the suit property. In addition, a permanent injunction was sought to the effect that the defendant No.1 be restrained from making any interference in the suit property. He be restrained from alienating the same. On the aforesaid factual backdrop, plaintiff filed an application under Order 39 Rule 1 & 2 R/w Section 151 C.P.C and prayed for temporary injunction to the effect that defendants be restrained from making any interference in possession of plaintiff and they be directed to maintain status quo with respect to suit property. In support of said application, plaintiff also filed an affidavit as well as documentary evidence. Copy of will is filed as Annexure P/4.

(3.) Shri D.D. Bansal, learned counsel for the petitioner, drew attention of this Court on the language of Order 39 C.P.C. He also relied on Order 19 Rule 1 & 2 C.P.C. By reading aforesaid provisions in juxta position, it is argued that order 39 does not contemplate any opportunity of cross-examination. Order 39 C.P.C makes it clear that word affidavit alone has been mentioned so that without going through the evidence, the court may decide the matter of injunction pending disposal of the suit. In support of his contention he relied on ( Abdul Hameed Khan Vs. Mujeed-Ul-Hasan and Ors., 1975 AIR(All) 398), (Sakalabhaktula Vykunta Rao and Ors. Vs. Made Appalaswamy, 1978 AIR(AP) 103), ( Rajib Barooah and Anr. Vs. Hernendra Prasad Barooah and Ors., 1994 AIR(Gau) 52), ( Bhairon Lal and another Vs. Chandmal and another, 1995 AIHC 360) and (Satya Prakash and Anr. Vs. Ist Additional District Judge, Etah and Ors., 2002 AIR(All) 198).