Allahabad High Court
Nagar Nigam Kanpur vs Nawab Jeeshan And 9 Others on 4 November, 2020
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 39 Case :- MATTERS UNDER ARTICLE 227 No. - 2863 of 2020 Petitioner :- Nagar Nigam Kanpur Respondent :- Nawab Jeeshan And 9 Others Counsel for Petitioner :- Abhinava Krishna Srivastava Counsel for Respondent :- C.S.C.,Azizur Rahman Khan,Manoj Kumar Pandey,Pranjal Mehrotra,Shivam Yadav,Sujeet Kumar Hon'ble Ashwani Kumar Mishra,J.
This petition under Article 227 of the Constitution of India has been filed challenging an order dated 10.10.2013 granting injunction in favour of the opposite party as also subsequent order dated 31.10.2018 rejecting the application filed for review of the order dated 10.10.2013.
A preliminary objection is raised to the maintainability of the writ petition on the ground that the order passed by the trial court can be assailed in a Misc. Appeal under Order 43, Rule 1(r) of the Code of Civil Procedure and that a petition under Article 227 of the Constitution of India would not be maintainable for achallenge to such orders.
Learned counsel for the petitioner states that the property has already been acquired and, therefore, the suit itself is not maintainable. It is also urged that in the same suit an earlier injunction application was rejected and, therefore, a second injunction application was not maintainable.
Sri Shashi Nandan, learned Senior Counsel for the respondents points out that on the earlier occasion the injunction application was rejected as the property itself was not found to be indentifiable on the spot and the plaint thereafter was amended and only thereafter injunction has been granted by the trial court.
Question as to whether property has been acquired or not need not be examined by this Court, at the first instance particularly when only prayer made in the petition is to set aside the order of injunction. It is always open for the petitioner to move an application under order 7, Rule 11 or file an appeal under Order 43 (1) (r) of the code against grant of injunction. Learned counsel for the petitioner has otherwise not been able to show any good ground to bypass the remedy available under the Code of Civil Procedure of preferring appeal against the order of injunction. The challenge to the order of injunction will ordinarily not be directly entertained in proceedings under Article 227 of the Constitution of India when the remedy of appeal under the Code has not been exhausted. This petition accordingly fails and is dismissed. It shall however be open for the petitioner to pursue its remedy available as per law.
Order Date :- 4.11.2020 Abhishek Singh