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Ram Prasad @ Adhar v. The Addl. Civil Judge (Sr. Division) & Another - WRIT - C No. 16305 of 2007 [2007] RD-AH 6130 (4 April 2007)


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Court No.6

Civil Misc. Writ Petition No.16305 of 2007

Ram Prasad alias Adhar Vs. The Additional Civil Judge, Senior Division, Allahabad and another


Hon'ble V.C. Misra, J.

A supplementary affidavit has been filed today in the Court and is taken on record.

The petitioner has filed the present writ petition before this Court for quashing the impugned order dated 15.3.2007 passed by the trial Court whereby the interim injunction application 6-C moved under Order 39 Rule 1 of the Code of Civil Procedure (in short the Code) was rejected. The suit was filed for permanent injunction restraining the defendant-respondent no.2 from interfering in the peaceful possession of the petitioner over the land in question. The defendant-respondent no.2 filed his counter affidavit to the injunction application on 8.3.2007. A copy of the said counter affidavit was served upon the petitioner on the same day. It is alleged that a request was made by the learned counsel for the petitioner to file rejoinder affidavit in rebuttal to the averments made in the counter affidavit but the trial Court without providing any time for the same insisted upon the petitioner to argue the case on merits. It is stated that the trial Court compelled the counsel for the petitioner to argue the matter and thereafter reserved the Judgment fixing 15.3.2007 for orders. It is also stated that the trial Court passed the impugned order on 15.3.2007 based upon the averments made in the counter affidavit and dismissed the injunction application.

Lerarned counsel for the petitioner relying upon the provisions of Order VIII Rule 9 of the Code has submitted that the Court should have granted leave to the petitioner to file its rebuttal through rejoinder to the averments made in the counter affidavit.

Order VIII Rule 9 of the Code only speaks of additional pleadings subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall not be presented except by the leave of the Court upon such terms as it thinks fit. This provision does not come to any aid to the petitioner.

The petitioner in support of his arguments has filed a supplementary affidavit dated 27.3.2007 sworn by the learned counsel who had appeared before the trial Court and has submitted that on receiving the counter affidavit on 8.3.2007 he requested the learned Judge to provide him a weeks' time to file rejoinder affidavit since several new facts were raised in the said counter affidavit but the trial Court rightly refused to grant even 24 hours time. The case has been fixed for framing of issues. No credence can be given to the affidavit filed by the learned counsel who argued the case before the trial Court since these averments require-proof and there is no such proof on record if this was the case the learned counsel for the plaintiff ought to have moved an application supported by an affidavit referring to such prayer and rejection of the same by the Court on 8.3.2007 itself but no such application or affidavit is shown to have been filed before the Court below. In my view such plea cannot be accepted.  

I have looked into the record of the case and heard the learned counsel for the petitioner at length. I do not find any error apparent on the face of the record calling for interference of this Court. It is not a fit case for exercising my extraordinary jurisdiction under Article 226 of the Constitution of India. The writ petition is dismissed with no order as to costs.

April 4, 2007



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