NARAINI BAI Vs. KHOOBI

JUDGEMENT

(1.) AS challenge made in both these petitions are to the same order Armexure P/1 dated 8.4.2002 passed by the 10th Additional District Judge, in Misc. Civil Appeal No. 18/01. Both the petitions are being disposed of by this common order.

(2.) ONE Gyasiram alongwith Kallusingh, Prembabu and Rajendra Singh filed a suit for declaration and injunction in respect of certain property situated in survey No. 320,322 area 5 bigha situated in village Keshavbagh, Gwalior. It was the case of the plaintiffs in the said suit that the defendants are trying to evict the petitioners and dispossess them from the area in question with the help of Gwalior Development Authority and, therefore, the suit was filed seeking injunction. Alongwith the suit, application was filed under Order XXXIX Rule 1 and 2 CPC seeking temporary injunction. Reply was filed to the application and after hearing arguments learned trial Court vide order dated 8.11.1996 Annexure P/2 granted injunction in the suit. Against the order of injunction, Gwalior Development Authority filed an appeal under Order XLIII Rule 1-R CPC before the appellate Court. When the appeal was pending original plaintiff Gyasiram and Kallusingh died and, therefore, their legal representatives who are the present petitioners before this Court filed the present petition. In W.P. 1812/02 petitioner No. 1 Laxminarayan is the minor son of Gyasiram and petitioner No. 2 Mahesh is the minor son of plaintiff Kallusingh. Other petitioners in W.P. 1699/02 are legal heirs of Gyasiram and Kallusingh. It is the case of the petitioners that the injunction granted by the trial Court has been interfered with by the appellate Court in an illegal manner. Petitioners Laxminarayan and Mahesh in W.P. 1218/02 contends that as they were minors there was none to protect their interest before the appellate Court. No step was taken by the appellate Court for appointment of guardian or next friend under Order XXXII of the CPC and it is stated by them that deciding the appeal without appointment of guardian is unsustainable. That apart, it is common ground taken in both the petitions that in the pending appeal an application under Order XLI Rule 27 CPC was filed alongwith various documents. These documents were taken on record and without granting any opportunity to produce documents or evidence in rebuttal matter was decided on the same day. Accordingly, it is argued that the interference made into the injunction granted by the appellate Court on the basis of fresh evidence adduced before the appellate Court for the first time without granting opportunity to the petitioner to rebut the same is unsustainable.

(3.) CONSIDERING the aforesaid aspect of the matter and taking note of the fact that since 1991 injunction is in progress interest of justice would be met if the suit in question is directed to be proceeded with and decided at an earlier date. Considering the same it is directed that the order passed by the learned appellate Court vide Annexure P/1 impugned in this petition shall not be given affect to for a period of six months and learned trial Court by maitaining status-quo as is existing in the matter, shall proceed to decide the suit in question in accordance with law within the aforesaid period of six months. In case the suit is not decided within the aforesaid period of six months, it would be open to the respondents, namely, Gwalior Development Authority to seek vacation of the order of status-quo and enforcement of the order passed by the appellate Court by filing appropriate application before the trial Court and if it is found by the trial Court that the proceedings in the suit could not be completed within the stipulated period of six months because of any default or delay tactics adopted by the plaintiff, the learned trial Court shall be free to vacate the order of status-quo on such grounds.