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Tej Narain Upadhyay v. State Of U.P. & Others - WRIT - C No. 25742 of 2007 [2007] RD-AH 10339 (1 June 2007)


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Court No. 34

Civil Misc. Writ Petition No.25742 of 2007

Tej Narain Upadhyay Vs. State of U.P. and others


Hon'ble V.C. Misra, J.

Heard Sri M.A. Qadeer learned counsel for the petitioner-plaintiff and Sri Vijay Bahadur Singh, Senior Advocate assisted by Sri Vivek Verma, Advocate on behalf of Allahabad Development Authority, Allahabad-respondents 2 and 3.

Learned counsel for the parties have prayed that this petition  may be disposed off at the admission stage in terms of the Rules of the Court.

This petition has been filed by the petitioner-plaintiff being aggrieved by the impugned order dated 22.5.2007 passed by the In charge District Judge, Allahabad in Misc. Appeal No.81 of 2007 by not granting an interim order at the appellate stage and fixing a date for hearing of the appeal and stay application on 9th July 2007. The said appeal had been filed by the appellant being aggrieved by the order passed by the trial Court rejecting the interim stay application and recalling its earlier ex parte injunction order. The appeal has been admitted and registered. The Court remarked that both the parties committed certain deeds and misdeeds while awarding contract to the appellant and regarding the implementation of the agreement entered between the parties and that it did not find it proper to grant interim order at that stage.

Learned counsel for the respondents had appeared on 30th May 2007 and prayed that 24 hours' time may be granted to file a counter affidavit, and the case was postponed for today. No counter affidavit has been filed but respondents have filed an affidavit referred as a short counter affidavit as submitted by them, due to constraint of time and non availability of the entire records. This affidavit is taken on record. Sri M.A. Qadeer learned counsel for the applicant-plaintiff has submitted that he does not want to file any rejoinder affidavit in rebuttal to the averments made in the short counter affidavit and the case may be heard.

A preliminary objection has been raised by the learned counsel for the respondents in respect with the maintainability of this application under Article 226/227 of the Constitution of India.

Learned counsel for the respondents has also submitted that apart from all the other legal aspects, one aspect is apparent on the face of the record which has not been denied that the applicant-plaintiff has not deposited the monthly rent regularly in every three months as laid down in the terms and conditions of the agreement and arrears of several months have accrued. In response Mr. Qadeer learned counsel for the petitioner-plaintiff has submitted that he has always been willing and is still willing to deposit the entire arrears through a Bank Draft which he is carrying with him. He has further submitted that the swimming pool is under lock of Allahabad Development Authority and is not being used. Whereas the learned counsel for the respondents has submitted that every day the members are coming and using the swimming pool.

Shri M.A. Qadeer learned counsel for the petitioner has submitted that even if a license has come to an end, even if the possession of the applicant is there even then he cannot be dispossessed there from except in due course of law and if the possession has been taken by force then the possession has to be redelivered to him. In support of his arguments, he has relied upon the following decisions :-

-1956 Patna 455 (AIR V 43 C 110 Nov.),

-1987 All. L. J. 1071,

-AIR 1989 Supreme Court 2097,

-(2004 All. C.J.  632).

Shri Vijay Bahadur Singh, Senior Advocate, learned counsel for the respondents has submitted that if a contract is cancelled illegally even then the person cannot be relegated to its earlier position and that the plaintiff if can be compensated in terms of money then injunction should not be granted. In support of his arguments he has also relied upon the following decisions :-

-In the case of State of Karnataka Vs. State of A.P. and others reported in (2000) 9 Supreme Court Cases 572, it has been held that injunction being a discretionary remedy, a Court may not grant an order of injunction, even if all the three necessary ingredients are established and those ingredients are prima facie case of infraction of legal rights, such infraction causes irreparable loss and injury to the plaintiff and the injury is of such nature that it cannot be compensated by way of damages, (Para-45). It has also been held that no Court can issue an order of mandatory injunction on mere apprehension without positive data about the adverse effects being placed and without any definite conclusion on the question of irreparable injury and balance of convenience, (Para-60).

-In the case of Wander Ltd. and another Vs. Antox India (P) Ltd. reported in 1990 (Supp.) Supreme Court Cases 727; Morgan Stanley Mutual Fund Vs. Kartik Das, reported in (1994) 4 Supreme Court Cases-225, and in the case of Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., reported in (1999) 7 Supreme Court Cases-1, the question of interlocutory injunction under Order 39 Rule 1 and Order 43 of the Code of Civil Procedure was as to when it should be granted and all the factors were considered and decided as to when interference by appellate Court with the exercise of discretion of Court of first instance was not justified. In the case of Maharwal Khewaji Trust (Regd.), Faridkot  Vs. Baldev Dass reported in (2004) 8 Supreme Court Cases-488 on the question of damages  it has been held that unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit a change of the said status quo, which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings.

During the course of arguments, there was a proposal to the learned counsel for the petitioner and respondents that in case the petitioner considers it and proper then respondents can be asked to deposit a suitable amount of money as security so that in case the compensation is required to be deposited in favour of the applicant then same may be kept readily available. Learned counsel for the respondents readily agreed to deposit an amount of Rs. 5 lakhs which could be suitably increased. However, the learned counsel for the applicant after consulting the petitioner declined the proposal.

Under the above said facts and circumstances of the case and after perusal of the record, and hearing learned counsel for parties at length, I do not find that any case of irreparable loss or injury is made out. The petitioner can be compensated in terms of money. There is also no error apparent on the face of the impugned order which calls for any interference by this Court inasmuch as the appeal would be finally heard and decided on 9.7.2007 itself and if in case, the appeal is allowed or the suit is finally decreed in favour of the plaintiff, the petitioner-plaintiff can very well claim suitable compensation for the damages so incurred on not being allowed to run the swimming pool during the entire period he has been restrained from running the pool. The petitioner-plaintiff is at liberty to raise all the legal grounds including the one raised before this Court on the question of compensation to be redelivered to him in support of which his learned counsel Sri M.A. Qadeer placed reliance upon the aforesaid decisions.

It is not a fit case for exercising my extraordinary jurisdiction under Article 226 or supervisory jurisdiction under Article 227 of the Constitution of India. The writ petition is accordingly dismissed. No order as to costs.

June 1, 2007



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