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Smt. Radha Devi v. Munna Lal And Others - WRIT - C No. 29647 of 2006  RD-AH 10381 (25 May 2006)
Court No. 23
Civil Misc. Writ Petition No. 29647 of 2006
Smt. Radha Devi Vs. Munna Lal & others
Hon'ble Umeshwar Pandey, J.
Heard learned counsel for the parties.
The order dated 09.05.2006 passed by the appellate court is under challenge in this petition.
The petitioner-plaintiff has filed a suit for permanent injunction along with which she also moved an application for temporary injunction under Order 39 Rules 1 and 2 C.P.C. The trial court, after hearing the petitioner, found it proper to pass an exparte injunction order vide Annexure No. 2 and also directed issuing notices to the respondents-defendants fixing 2.5.2006 for disposal of the injunction matter. Against this exparte injunction order, the respondents-defendants put in appearance before the court as well as he filed an appeal under Order 43 Rule 1 (r) C.P.C. on the same date (9.5.2006). The appellate court, while admitting the appeal, directed issuance of notice to the plaintiffs-respondents fixing 4.7.2006 and also stayed the operation of the exparte injunction order passed by the trial court.
It is contended by the learned counsel for the petitioner that with malafide intention the defendants-respondents moved the appellate court with the present appeal when he had also filed his objections along with counter affidavit before the trial court where the date for disposal of the injunction application was fixed from before as 2.5.2006. The matter could be heard on merit by the trial court itself and in the aforesaid circumstances there was no propriety on the part of the respondents-defendants for preferring this appeal.
From the aforesaid facts, it is more than evident that in the surrounding facts there is definite smacking of malafide on the part of respondents-defendants. When they had also filed counter affidavit along with stay vacation prayer, there was absolutely no justification on their part to have come in appeal and obtain one stay order from there, even though the order against which the appeal was preferred is an appealable order. Thus, the order of the appellate court staying the operation of order of the trial court being wholly unjust and which appears to have been passed on concealment of certain facts before the court, is hereby quashed and the petition is allowed to that extent. It is stated that 10th July, 2006, is a date fixed by the trial court for disposal of the injunction application. Thus, it is directed that the trial court would take up the injunction matter without any further delay without weighting for any decision in the appeal and shall dispose of the same within July, 2006.
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