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Smt. Babli Sharma And Another v. State Of U.P. And Others - WRIT - C No. 8461 of 2006 [2006] RD-AH 3439 (14 February 2006)


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Court No. 36

Civil Misc. Writ Petition No. 8461 of 2006

Smt. Babli Sharma & Anr. ------- Petitioners


The State of U.P. & Ors. ------- Respondents


Hon'ble Sushil Harkauli,J.

Hon'ble Vikram Nath J.

It appears that the petitioners instituted Suit No. 83 of 2006 with the averments that the defendant nos. 1 and 2, that is, the mother and father of the petitioner no. 2 have executed an agreement or sale deed in favour of the defendant no. 3 and the petitioners, who are in possession of the property, so transferred, are threatened with dispossession by the defendant no. 3. The defendant nos. 4 to 8 in the suit are formal parties only.

Defendant nos. 1 and 2 have already sold the property, prima facie, would not have much interest in the matter. Therefore, primarily the interim relief of injunction is sought against the defendant no. 3. Learned counsel for the petitioner is not aware whether the summons of the suit have or have not been served upon the defendant no. 3. The trial court did not consider it appropriate to grant an ex parte interim injunction but directed issue of summons and notices to the defendants. The petitioners, who are the plaintiffs, preferred a revision in which also revisional court did not grant any ex parte interim injunction, but merely directed for issue of notice.

In view of this situation, there is a possibility that the summons genuinely may not have been served upon the defendant no. 3 and equally a possibility that the defendant no. 3 may be wanting to take advantage of the fact that no ex parte interim injunction has been granted and may, therefore, be evading service.

In the circumstances, the trial court will examine from the agreement or from the sale deed, whether the address of the defendant no. 3 mentioned in the plaint is correct or not. For this purpose, it will be for the plaintiffs to satisfy the trial court by furnishing certified copy of the agreement/ sale deed that the address is correct. If the address of the defendant no. 3 in the plaint is correct, the trial court will examine as to why summons could not be served and thereafter if the trial court is of the opinion that the defendant no. 3 is evading service, it may consider for granting of a time bound interim injunction, which in all probability will immediately force the defendant no. 3 to respond to the court and file a reply in the case after which the question whether interim injunction, if granted by the trial court, should or should not be extended, can be decided.

The above principles are only for the guidance of the trial court and will not be taken as binding upon the trial court while considering the matter.

However, the trial court will try to proceed as expeditiously as possible in respect of finding appropriate application for the interim injunction.

Writ petition is disposed of with the aforesaid directions.




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