RAJPAL SINGH Vs. SUNDERLAL

JUDGEMENT

(1.) In this petition filed under Article 227 of the Constitution, the petitioner has challenged the order dtd. 4/4/2014 (Annexure- P/7) passed by the IV th Additional District Judge, Sagar in Misc. Civil Appeal No.11/2014.

(2.) The respondents/plaintiffs filed a civil suit for declaration and permanent injunction. Along with the suit, an application under Order 39 Rule 1 & 2 of Civil Procedure Code was filed. The present petitioners/defendants filed an application under Order 7 Rule 11 of Code of Civil Procedure dtd. 21/12/2012 (Annexure-P/5). The trial Court decided the application under Order 39 Rule 1 & 2 of CPC by order dtd. 3/3/2014. The injunction application of the plaintiffs was rejected. The plaintiffs feeling aggrieved with the said order preferred an miscellaneous appeal before the Court below. By the impugned order the said miscellaneous appeal was allowed and defendant Nos.3 & 4 were restrained from interfering into the possession of the plaintiffs till decision of civil suit or till partition takes place.

(3.) Shri Amit Sharma criticized the order by contending that when the application under Order 7 Rule 11 of CPC was pending, the trial Court should have decided the said application before taking up and deciding injunction application. Unless the application under Order 7 Rule 11 of CPC is decided, it cannot be said that the civil suit is maintainable and plaintiffs have a prima facie case. Shri Sharma specifically contended that the said application AnnexureP/ 5 is still pending before the trial Court. He urged that the appellate Court has committed an error in granting injunction without appreciating that the petitioner's application under Order 7 Rule 11 of CPC is pending. On merits also, it is urged that the findings given by the appellate Court are bad in law.