Allahabad High Court
Shanti Swaroop vs Bhullan on 8 January, 2010
Author: Devi Prasad Singh
Bench: Devi Prasad Singh
Court No. - 27 Case :- FIRST APPEAL FROM ORDER No. - 488 of 2009 Petitioner :- Shanti Swaroop Respondent :- Bhullan Petitioner Counsel :- Dipak Seth,Mohd Adil Khan,Mohd. Aslam Khan,Mohiuddin Khan Respondent Counsel :- D C Mukharji,Gaus Beg Hon'ble Devi Prasad Singh,J.
Hon'ble S.C. Chaurasia,J.
Heard Shri Arif Khan learned Senior counsel on behalf of the appellant and Shri D.C.Mukherjee learned counsel for the respondents. The present appeal under Order 43 Rule 1 of the CPC has been preferred against the order dated 8.4.2009 passed by the Civil Judge, Senior Division Unnao declining to grant temporary injuction.
It has been stated by Mohd. Arif Khan learned counsel for the appellant that the appellant is the owner of the property in question in pursuance to sale deed executed by the original owner through power of attorney.� On the other hand, Shri D.C.Mukherjee learned counsel for the private respondents submits that power of attorney as well as execution of sale deed nullity in law since land belongs to schedule caste person.� It has also been stated by the respondents that suit is not maintainable.� Keeping in view the facts and circumstances of the case, we are of the view that trial court should decide the suit itself on an early date where issue may be framed with regard to maintainability of suit may be decided as preliminary issue by the trial court.� However, it shall be appropriate that parties' whosoever in possession should not be disturbed and both side shall not alienate the property in question during the pendency of suit or till disposal of preliminary issues with regard to maintainability of suit. In view of above, we dispose of the appeal directing the parties to maintain status-quo as observed hereinabove and shall not alienate the property in question till final adjudication of controversy by the trial court.� The trial court shall frame preliminary issues with regard to maintainability of suit and shall decide the case after recording evidence lead by the parties including preliminary issues expeditiously and preferably within a period of six months from the date of receipt of a certified copy of this order.� The trial court shall proceed on day today basis and shall not adjourn the pending case except for recorded reasons.� It shall be open to the trial court to frame other issues after providing opportunity of hearing to the parties and decide the same.� Trial court while deciding the controversy shall not be influenced by observations made by it while declining to grant interim relief, and shall decide the case independently on the basis of evidence led by the parties. Subject to above, appeal is disposed of finally.
Order Date :- 8.1.2010 Madhu