ASEBAN BIBI Vs. SAFIUDDIN SK

JUDGEMENT

(1.) The fundamental question which has arisen in this matter appears to have been lost on both the trial Court and the lower appellate Court. The legal issue that arises is the circumstances in which a substantive interlocutory application for interim relief may be carried and sustained by the defendants in a suit who have not lodged any counterclaim. In the suit relating to an immovable property over which the plaintiffs claim ownership and in respect whereof the plaintiffs seek a permanent injunction against the defendants, the defendants applied alleging that the plaintiffs were threatening or attempting to dispossess the defendants from the property in question. The trial Court was swayed by the allegations made by the defendants and allowed the application by ordering as follows:

(2.) Apart from the fact that the utter non-application of mind of the judicial officer manning the trial Court is evident from the operative part of the order, it does not appear from the 4 or 5 pages of the handwritten order of the trial Court that it crossed the mind of the trial Judge that it was the defendants' application that the trial Court had entertained and it was the defendants' application on which an order was being passed. The lower appellate Court, remarkably, did not interfere with the order passed by the trial Court and referred to two judgments, including one which has been cited by the defendants/opposite parties herein in course of the present proceedings, relating to the futility and impermissibility of undefined orders of status quo being passed by any Court.

(3.) The primary ground urged by the petitioners here is that the defendants, who had not lodged a counterclaim nor had filed any Court fees thereon, could not have obtained a positive order of such nature in the defendants' favour.