Sharad Kumar Sharma, J
1. The plaintiff petitioner on 01.02.2011 had filed a suit in relation to the property as described at the foot of the plaint for claiming a decree of
permanent injunction in relation to the property in dispute. The said Suit thus instituted accompanied with an application under Order 39 Rule 1 & 2.
The Court of Civil Judge (J.D.) by the judgment dated 21.02.2011 had considered the property of the application under Order 39 Rule 1 & 2, as well
as the objection under Order 39 Rule 4 paper No. 17ga as filed by defendants in objection to it and thereby by the temporary injunction order dated
21.02.2011 the defendants were restrained from interfering over the property, i.e. House No. 39, and particularly the part which was in possession of
the plaintiff. The injunction was granted in relation to the property, which was demarcated by the plaintiff (petitioner herein) in the plaint map, which
was filed along with a Suit being paper no. 5ka and the property over which the injunction was granted was described as to be figure A, B, C and D.
2. The nature of injunction, which was granted by the learned Trial Court, vide its order dated 21.02.2011, it was to the effect that the parties to the
Suit were restrained from raising any construction or interfering over the property in question, which was being occupied by the plaintiff/petitioner.
Relevant portion of the judgment is quoted hereunder:
“
6 17
0-39, ,
0-4 ,
15-03-2011 â€
3. Its being aggrieved against this order, dated 21.02.2011 passed by the Civil Judge (Jr. Div.) Nainital the defendants (respondents herein) had filed a
Miscellaneous Civil Appeal No. 7 of 11 ‘Sri Mahesh Chandra Sah & Others vs. Vimal Sah’ by invoking the provisions contained under Order
43 Rule 1 (r), the learned Appellate Court after considering the propriety of the temporary injunction, which was granted by the order dated
21.02.2011 in favour of the plaintiff (petitioner herein) while passing the impugned order under challenge in the present writ petition and as rendered in
the aforesaid Civil Miscellaneous Appeal on 15.04.2011, had passed an order to the effect that while partially allowing the appeal of the
defendants/respondents the parties were restrained from raising any construction, but, however, a rider was attached to it was to the effect that the
defendants would be permitted to raise the construction over the portion of the property i.e. apart from the property, which was described in paper
No. 18ga/6, which was part of the property bearing Municipal No. 38A. The direction of appellate court vide its order dated 15.04.2011, is under
challenge in the writ petition. Operative portion of the judgment is quoted hereunder:
“
39
, 39
18/6 ,
38
â€
4. It is this appellate order whereby the liberty was granted by modifying the order of the Trial Court dated 21.02.2011, by which it was permitting the
defendants to raise the construction in relation to the part as demarcated by the appellate order as shown by paper No.18ga/6 filed by the defendant, is
put to challenge by the plaintiff/petitioner before this Court by filing the present writ petition praying for quashing the order of the Appellate Court
dated 15.04.2011 and with a direction that the Trial Court’s order dated 21.02.2011 may be sustained.
5. When the writ petition was instituted before this Court on 16.05.2011 the Court without granting an interim order had passed an order of issuing
notices to the respondents. The petitioner is shown to have taken steps for serving the defendants/respondent nos. 1, 2 and 3 both ways by normal
mode of service as well as dasti. Under the normal mode of service it is reported by the Registry on 21.06.2011 that when the process server visited
the place the defendants/ respondents they were not found there at the given address, but in the affidavit of service, which has been filed by the
petitioner, as he was also directed to serve the respondents by dasti too, the respondents are shown to have been serve by refusal and an affidavit of
service has been filed on record to the said effect on 22.06.2011.
6. After considering the propriety of the affidavit of service with regards to the service by refusal and also considering the fact that the writ petition is
pending consideration since after the same being instituted on 13.05.2011 in relation to a Suit, which is pending since 2011, this Court while accepting
the propriety of the affidavit of service treats that the respondents have been served satisfactorily, but still they have chosen not to put in appearance
and contest the writ petition on merits.
7. The argument, which has been extended by the learned counsel for the petitioner is to the effect that in an appeal, which has been preferred by the
defendants/respondents being against the grant of temporary injunction the Appellate Court while exercising its powers under Order 43 Rule 1 (r)
could have either maintained the injunction order granted by the Trial Court on 21.02.2011 or at the most could have quashed it and rejected the
application of the plaintiff/petitioner filed under Order 39 Rules 1 & 2 the Code of Civil Procedure.
8. The main grievance of the petitioner is that in an appeal preferred by the defendants/respondents against the order of temporary injunction dated
21.02.2011 the Appellate Court by the impugned judgment dated 15.04.2011 could not have modified the order of temporary injunction granted on
21.02.2011, which was beyond the relief claimed in the principal application for injunction by permitting the defendants to raise the construction over
remaining part of the property bearing Municipal No. 38A as shown by the document Annexure-18ga/6 filed by the defendants, particularly when
defendants were not the applicants under order 39 Rule 1 & 2 of Civil Procedure Code.
9. This Court is in agreement that the argument extended by the learned counsel for the petitioner to the effect that in an appeal preferred by the
defendants against the grant of injunction, by an order dated 21.02.2011, the Appellate Court could have either maintain the injunction order or could
have allowed the appeal, but while passing the impugned order dated 15.04.2011, the direction issued by the Appellate Court permitting the defendants
to raise the construction over the part of the property in dispute, which they have depicted by way of paper No. 18ga, cannot be sustained because it
would amount to that the Appellate Court while exercising its powers under the civil miscellaneous appeal under Order 43 Rule (1) (r) has exceeded in
exercise of its jurisdiction that instead of determining the propriety of the injunction order granted in favour of the plaintiff, it could have either
accepted the injunction order or could have denied it, but rather it could not have carved out altogether a distinct case by permitting the defendants to
raise the construction over part of the property in dispute, which is a subject matter of the suit preferred by the plaintiff, because it may result into
frustrating the suit itself.
10. In that view of the matter, while partially allowing the writ petition the impugned order dated 15.04.2011 is quashed to the extent where the
Appellate Court has permitted the defendants to raise the construction over part of the property bearing Municipal No. 38A paper No. 18ga/6 and the
injunction order as granted by the learned Trial Court on 22.02.2011 is directed to be maintained in its totality.
11. Considering the fact that the Suit is pending consideration since February, 2011, this Court while partly allowing the writ petition, requests the
learned Trial Court, before whom the Suit in question is pending, to decide the Suit No. 3 of 2011 ‘Vimla Shah vs. Shri Mahesh Chandra Shah &
Others’ itself as expeditiously as possible, but not later than one year from the date of production of certified copy of this order.
12. Subject to the above observation, the writ petition partially succeeds.
13. However, there would be no order as to cost.
