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DWARIKA PRASAD versus XI ADDITIONAL DISTRICT JUDGE, KANPUR AND OTHERS

High Court of Judicature at Allahabad

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Dwarika Prasad v. XI Additional District Judge, Kanpur and others - WRIT - C No. 42990 of 1993 [2004] RD-AH 1669 (10 December 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 51

Civil Misc. Writ Petition No. 42990 of 1993

Dwarika Prasad                                    ------                   Petitioner

Vs.

XI Addl. District Judge, Kanpur Nagar & others ----        Respondents.

----

Hon'ble V.C.Misra, J.

Sri S.N. Singh, learned counsel for the petitioner and learned Standing Counsel on behalf of respondents no. 1 and 2 are present. No one is present on behalf of respondent no. 3- Munni Lal to oppose the writ petition, though Sri S.M. Dayal, learned counsel has filed his Vakalatnama on his behalf. A counter affidavit has also been filed on behalf of respondent no. 3.

1. This writ petition has been filed by the petitioner for quashing the impugned judgments and orders dated 26.8.1993 (Annexure No. 7 to the writ petition) passed by the XI Additional District Judge, Kanpur Nagar- respondent no. 1 and dated 14.8.1991 (Annexure No. 6 to the writ petition) passed by the IIIrd Additional Civil Judge, Kanpur Nagar- respondent no. 2. Though the petitioner has sought for certain other reliefs in the writ petition, but during the course of arguments learned counsel for the petitioner has confined himself to the relief no. 1 and pressed the same only.  

2. The facts of the case in brief are that the house no. 105/546, Anand Bagh, Chamanganj, Kanpur Nagar is an ancestral property of the petitioner and the same originally belonged to one Madho Narain who died leaving behind his widow and 8 sons. The contention of the petitioner is that all the sons occupied their portions in the house, in question, and they were living as per their convenience. While the petitioner, one of the sons of the aforesaid Madho Narain, was away, the respondent no. 3- Munni Lal broke open the petitioner's lock and forcibly occupied the possession over three rooms which were in the possession of the petitioner, situated on the first floor of the house, in question. Due to apprehension of breach of peace with regard to possession over the accommodation, in question, proceedings under Section 145 of the Code of Criminal Procedure were initiated and the property was attached. The Additional City Magistrate, IInd, Kanpur Nagar after hearing the parties and considering the entire material on the record released three rooms of the disputed house, in question, in favour of the petitioner vide its order dated 4.6.1984 (Annexure No. 1 to the writ petition). The respondent no. 3- Munni lal, being aggrieved, filed a criminal revision No. 174/M/1984 against the said order before the XI Additional District and Sessions Judge, Kanpur Nagar which was dismissed on 11-9.1984. The respondent no. 3 being aggrieved from dismissal of the said criminal revision, initiated proceedings under Section 482 of the Code of Criminal Procedure, which too was finally rejected by this Court. However, the petitioner was given possession over the two rooms out of three rooms in the house, in question, on 10.4.1988.

3. The respondent no. 3 Munni Lal had had in the meanwhile filed a original suit no. 652 of 1984 on 13.9.1984 for seeking declaration and possession over the said three rooms, in question, possessed and occupied by the petitioner. In the said suit an ad interim injunction order dated 14.8.1991 (Annexure No. 6 to the writ petition) was passed by III Additional Civil Judge, Kanpur Nagar by which the parties to the suit were directed to maintain status quo till the pendency of the suit and the respondent-petitioner (herein) was restrained from dispossessing the respondent no. 3 - plaintiff (herein) in that suit, without permission of the trial court.

4. Being aggrieved, the petitioner (defendant no. 1 in original suit No. 652 of 1984) filed a Misc. Civil Appeal No. 5 of 1992 before XIth Additional District Judge, Kanpur Nagar who too dismissed the same with costs vide its order dated 26.8.1993 (Annexure No. 7 to the writ petition) on the ground that the order of the court below was not incorrect and the matter, in issue, was only to be decided by the civil court and it was imperative on the part of court below to pass the order for maintaining status quo of the house, in question, and there was neither any discrepancy nor any error in the impugned order. The appellate court below confirmed the said ad interim injunction order.

5. Being aggrieved the petitioner filed the present writ petition against the order dated 26/8/1993 (Annexure No. 7 to the writ petition) passed by XI Additional District Judge, Kanpur Nagar on the ground that in view of the clear bar provided under Section 41(d) of the Specific Relief Act, 1963 to the effect that no injunction order should be granted which would have the effect of stay of the execution of the order passed by the criminal court under Section 145 of the Code of Criminal Procedure. Since both the courts below have granted interim injunction staying the effect rather staying the execution of the orders passed by the criminal courts under Section 145 of the Code of Criminal Procedure, the impugned orders were manifestly erroneous and orders were liable to be quashed. This writ petition was admitted on 30.11.1993 and on 8.12.1995 by interim order the effect of the operation of the impugned order dated 14.8.1991 passed by the IIIrd Additional Civil Judge, Kanpur Nagar as affirmed by the appellate order passed by the XI Additional District Judge, Kanpur Nagar was stayed, till further orders of this Court.  

6. Learned counsel for the petitioner in support of his case has relied upon the decisions of the cases rendered in the case of Ram Briksha Sonar and another Vs. Ganesh Ram and others (Civil Revision No. 1028 of 1976, decided on 13th November, 1978) as well as in Durga Prasad Vs. Mata Saran and others (1993 Allahabad Civil Journal Page 513).

7. I have looked into the records of the case and heard learned counsel for the petitioner and learned Standing Counsel, at length and find that the courts below- the IIIrd Additional Civil Judge, Kanpur Nagar and XIth Additional District Judge, Kanpur Nagar, both, have committed manifest error of law in ignoring the principles laid down under clause (d) of Section 41 of the Specific Relief Act, 1963 which provides that an injunction cannot be granted to restrain a person from instituting or prosecuting any proceeding in criminal matter. In the present case, I find that by passing the impugned orders the courts below countermanded the effect of the orders passed by the criminal courts under Section 145 of the Code of Criminal Procedure. The  decisions of the cases cited by the learned counsel for the petitioner fully apply to the facts of the present case. However, from any point of view, it was not a fit case where the courts below should have granted the ad-interim injunction order in favour of the respondent no. 3.

8. In view of the above said facts and circumstances of the case and the observations made herein before, the impugned orders dated 26.8.1993 (Annexure No. 7 to the writ petition) passed by XI Additional District Judge, Kanpur Nagar- respondent no. 1 and dated 14.8.1991 (Annexure No. 6 to the writ petition) passed by III Additional Civil Judge, Kanpur Nagar- respondent no. 2 are hereby quashed.

The writ petition is allowed to the extent indicated above. There will be no order as to costs.

December 10, 2004

Kdo


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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