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Gayatri Prasad (Dead)/ Ashok Kumar And Another v. Parshottam (Dead)/ Gulab And Others - SECOND APPEAL No. 358 of 2006 [2006] RD-AH 17825 (17 October 2006)


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Court No. 24

Civil Revision No. 358 of 2006

The S.R.G.P. Industries Limited, Kanpur Vs. Shri Sri Narayan Gupta

Hon'ble Umeshwar Pandey, J.

Heard Sri Shashi Nandan, Sr. Advocate, assisted by Sri N.K. Srivastava, Advocate, on behalf of the revisionist.

This revision is directed against the order dated 7.9.2006 whereby the trial court instead of granting exparte injunction order under Order 39 Rules 1 and 2 C.P.C. has directed issuance of notice to the defendant and fixed a date for disposal of the said matter.

It is contended by the learned counsel that the land in question over which the respondent defendant is proposing to raise construction is a property given by the plaintiff on lease to him. The lease deed provides that the construction would be raised over the land only in accordance with the rules and regulations of the Cantonment Board on the basis of duly sanctioned plan. The defendant respondent is proposing such construction, which has not been duly sanctioned by the Cantonment Board, and thus, would be violating the conditions of the lease in as-much-as such construction would also be against the limits imposed by the Cantonment Board Rules.

Whether or not the proposed construction is going to be something not permitted under lease and is not in accordance with the plan duly sanctioned by the Cantonment Board, is such a question which the court can even in primafacie, decide only after the appearance of the other party and not before that. It is in these circumstances that the court below instead of granting an exparte injunction order has preferred to direct issuance of notice to the defendant. The order is wholly justified and legal and it cannot be interfered with in the present revision.

The revision is hereby disposed of with this direction that the court below on the date already fixed in the case would take up the temporary injunction application of the revisionist in right earnest and dispose it of on that date itself or within next one week in case the respondent defendant has been served with a notice. In the event of insufficient service or no service upon the defendant, the court would permit/direct the plaintiff himself to serve the notice personally upon the defendant and thereafter the injunction application shall be decided without any further delay. The affidavit of such personal service of the defendant with the notice shall be required by the trial court.




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