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Haji Tanvir Ahmad Alias Kala v. Nagar Palika Prishad And Others - MATTERS UNDER ARTICLE 227 No. 149 of 2007 [2007] RD-AH 4378 (14 March 2007)


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Court No.6

Civil Misc. Writ Petition No.149 of 2007

Haji Tanvir Ahmad alias Kala Vs. Nagar Palika Parishad,

Saharanpur and others


Hon'ble V.C. Misra, J.

Sri K.L. Grover Senior Advocate assisted by Sri Rajesh Singh learned counsel for the applicant and Sri Mukhtar Alam Advocate learned counsel for the respondents are present. On the join joint request of learned counsel for the parties, this application is being disposed off finally at the admission stage itself without calling for counter affidavit in terms of the Rules of Court.

The facts of the case in brief are that the applicant was granted a licence by the Nagar Palika Parishad, Saharanpur-respondents 1 and 2 for transportation and trading of meat from Saharanpur to New Delhi up to the quantity of 60 quintats per day  for one year in the year 2001 which was extended from time to time and is valid till 31st March 2007 due to personal animosity between the brother of the applicant-plaintiff and the present Chairman of Nagar Palika Parishad and on his pressure the aforesaid licence was cancelled vide order dated 13.11.2006 on the ground of alleged complaints against the applicant. Feeling aggrieved, the applicant filed a writ petition before this Court challenging the cancellation of his licence. This Court took cognizance of the petition and the interim stay application and issued notices on 6.12.2006 to the opposite parties. Since the petitioner was not granted ex parte interim order and only notices were issued, the applicant filed an appeal under Section 318 of Municipalities Act before the District Magistrate on 11.12.2006 against the main impugned order dated 13.11.2006 which is still pending. He also filed an Original Suit No.1296 of 2006 before the Civil Judge (Senior Division) Saharanpur on 12.12.2006. Ex parte interim injunction order was granted to him on the same day. A Civil Misc. Appeal No.117 of 2006 was filed by the respondents-Nagar Palika Parishad against the ex parte interim stay order dated 12.12.2006 which was allowed and the ex parte stay order was vacated and the matter was remanded back with the directions to dispose off the application 6-C on merits within one week fixing 25.1.2007. The appellant-Parishad had submitted that the plaintiff had obtained the ex parte injunction order fraudulently by concealing/suppressing material facts to the effect that a writ petition was also pending in respect of the same relief and after obtaining the ex parte interim stay order dated 12.2.2006 the applicant-plaintiff had got their writ petition dismissed as withdrawn on 19.12.2006 that too without seeking the leave of the High Court for filing the said injunction suit to which plaintiff could not resort to in terms of the decision laid down in the case of M/s Upadhyay and Co. Vs. State of U.P. and others and prayed that the said interim injunction so granted under fraud be rejected. The trial Court after hearing the parties at length vacated interim injunction order and rejected the injunction application 6-C vide order dated 6.2.2007 against which a Civil Misc. Appeal No.6 of 2007 was filed by the plaintiff. This appeal was also dismissed on the ground that the plaintiff had obtained the interim injunction order by concealing/suppressing material facts and had not come with clean hands and thus he was not entitled to any interim stay order as the relief sought was equitable and no equity lay in favour of the plaintiff. A reference was made to the decision in the case of Haji Mohd. Sayeed and others  Vs. Abdul Ghafoor and others reported in AIR 1995 Alld. Page-688 that looking into the conduct and demeanor of the applicant-plaintiff being not equitable trial Court could vacate, modify or resend the relief. The appeal was rejected on 26.2.2007. The appellate Court also found that the balance of convenience did not lie in favour of the plaintiff as he could claim compensation by way of damages in case the suit was allowed.

I have perused the record and heard learned counsel for the parties at length.

Learned counsel for the respondents has referred to Order 39 Rule 2 as amended by the State of U.P. which reads as under :

"Provided that no such injunction shall be granted -

(a)         where no perpetual injunction could be granted in view of the provisions of   Section 38 and Section 41 of the Specific Relief Act, 1963 (Act 47 of 1963), or



and any order for injunction granted in contravention of these provisions shall be void."

Section 41 of the Specific Relief Act, 1963 reads as under :-

Injunction when refused. - An injunction cannot be granted -

(i)     when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the Court ;

Section 41 of the Specific Relief Act speaks the procedure when an injunction can be refused.

Learned counsel for the applicant has submitted that the order of injunction may be discharged, varied or set aside under Order 39 Rule 4 of the Code of Civil Procedure and the Courts below have wrongly come to the conclusion that as a writ petition had already been preferred and was pending but this fact was concealed was wrong. There was no case of concealment rather the applicant-plaintiff omitted to give reference of the same in the suit and the application and even if the omission was knowingly made would not amount to concealment or suppression of facts or making of false or misleading statement and therefore, the trial Court could not vacate, discharge vary or set aside the ex parte injunction order.

Having heard the learned counsel for the parties and after perusal of the record I find that the trial Court and the appellate Court committed no error  apparent on the face of record in passing the impugned orders vacating the ex parte injunction order granted in favour of the applicant for not bringing on record the filing of the writ petition before this Court and order of issuance of notice on respondents which amounted to concealment/suppression of facts while exercising its power under the provisions of Order 39 Rules 1 and 2 granting temporary ex parte injunction order as it has the power to discharge/vacate the same in case, the provisions of sub Rule (2) as amended by the U.P. Act 57 of 1976 on being contravened became void. More so, in terms of the said amendment made by the U.P. Act 57 of 1976 under Rule 4 of Order 39 of the Code of Civil Procedure which is reads:

"Provided that if at any stage of the suit it appears to the Court that the party in whose favour the order of injunction exists is delaying the proceedings or is otherwise abusing the process of Court, it shall set aside the order for injunction."

The applicant had simultaneously resorted to two remedies, one by filing a writ petition before this Court and the other before the Court below against same relief which amounts to abuse of the process of law.

The concealment/suppression of the aforesaid facts by the plaintiff knowingly amounts to abuse of process of Courts and empowers the Court to set aside the order of injunction. I also do not find any error apparent on the face of the orders passed by both the Courts below. The application is accordingly rejected without any order as to costs.

March 14, 2007



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