Allahabad High Court

Heard Sri Pritish Kumar, learned counsel for the petitioner. Sri Vivek Raj Singh, learned Senior Counsel assisted by Sri Pramod Shukla, learned counsel for the private respondent no. 2 who has put in appearance on caveat and Sri Satish Kumar Mishra, learned counsel for the respondent nos. 1, 3 to 8. Under challenge is the order dated 13.08.2025 passed by the Additional District Judge Court No. 4, District Barabanki in Misc. Civil Appeal No. 18 of 2024 under Order XLIII Rule 1 (r) C.P.C. whereby in an appeal preferred by the private respondents/defendants, assailing an order granting temporary injunction by the Trial Court was allowed as a result, the injunction granted has been set aside. At the outset, Sri Vivek Raj Singh, learned Senior Counsel has filed his preliminary objection regarding the maintainability of the instant petition. He has raised a three pronged submissions to attack the petition on the grounds of maintainability. (i) that the suit filed by the plaintiff-petitioner was itself not maintainable on two counts; (a) that on the date of the filing of the present suit, an earlier suit relating to the same controversy had already been filed and was pending in light thereof the second suit was not maintainable. 2 A227 No. 5433 of 2025 (ii) Considering the averments made in the plaint in suit, prima facie, it was reflected as a fact that the plaintiffs were not in possession of the property in question and in view thereof the suit was simplicitor injunction was not maintainable; (iii) That even otherwise once the Appellate Court has taken a view based on the material evidence on record, it is not open for this Court in exercise of powers under Article 227 of the Constitution of India to sit as an Appellate Court rather the findings of fact which are flowing from the records, howsoever, erroneous cannot be substituted or reversed and for the said reason, this petition for the foregoing reasons is not maintainable. In support of his submissions, Sri Singh has relied upon the decisions of the Apex court in Anthula Sudhakar v. P. Buchi Reddy and others; 2008 (4) SCC 594, M/s India Pipe Fitting Co. v. Fakruddin M.A. Baker and Another; 1977 (4) SCC 587 and Sukhbir Narain v. DDC; 1987 (Supp) SCC 74. Responding to the aforesaid preliminary objections, learned counsel for the petitioner has stated that the father of the private respondents and the petitioner had entered into an arrangement in terms whereof the plots which were described in the plaint were to be purchased, developed and to be sold and in this context, a company was incorporated wherein the father of the private respondents was a director and his other family members were also shareholders along with the plaintiffs. The said company had undertaken the development, in terms whereof consideration was received and from time to time commencing from the year 2011, sale deeds were executed and consideration was also paid to the predecessors-in-interest of the private respondents and after his death even to the private respondents through bank transactions and a sum of Rs. 8 crores and odd in all was paid. It is further urged that since the property in question were certain agricultural plots over which work was developed, hence, the name of the predecessors-in-interest of the private respondents and after his death, his successors continued to be recorded in the revenue records and now the respondents had a change of heart and were attempting to create a third 3 A227 No. 5433 of 2025 party rights, hence, in order to prevent alienation of the said developed plots in favour of any third party by the private respondents, the suit for injunction was filed which came to be registered as Regular Suit No. 675 of 2023. It is further submitted that after the exchange of pleadings, the Trial Court by means of order dated 20th August, 2024 granted an order of status- quo. This order of status-quo was assailed by the private respondents before the Appellate Court under order XLIII Rule (1) (r) read with Section 104 C.P.C., however, the First Appellate Court considering the said appeal has entered into the merits and after holding a mini trial set aside the order of injunction granted by the Trial Court. Thus, the thirst of the submission of learned counsel for the petitioner is that at the stage when an application under Order XXXIX Rule 1 and 2 C.P.C. is under consideration, it is a stage prior to the commencement of trial, where the rights of the parties are in a fluid and moreover the Court is required to consider a prima facie case of the plaintiffs which is not to be confused with the prima facie title. It is also urged that there were several documents placed on record indicating and corroborating the nature of arrangement and the manner in which the same was acted upon by the predecessors-in-interest of the private respondents which continued and in such circumstances, the order granting status-quo did not impinge on the right of any of the parties but was most appropriate to protect the property, till such time, the matter could be considered on merits in trial. However, the First Appellate Court exceeded its jurisdiction while considering the appeal under Order XXXIX Rule 1 and 2 C.P.C., hence, the order is bad. Having considered the aforesaid submissions, apparently, as far as the preliminary objections raised by the private respondents is concerned, suffice to state that the proposition which has been laid down by the Apex Court in the case of Anthulla Sudhakar (supra) relates to the grant of final relief as the said decision arises out of the decision rendered by the courts after the second appeal under Section 100 C.P.C. was exhausted. 4 A227 No. 5433 of 2025 It is in the aforesaid circumstances that the proposition has been laid by the Supreme Court, which apparently is not disputed, but may not be applicable at this stage to make the statutory appeal not maintainable. At this stage where the matter is yet to go to trial, it cannot be said that the suit itself was not maintainable as in light of the averments and certain facts which are not disputed by the defendants as disclosed in their written statements/objections filed regarding the money received by them and it is and in case if there was the submission that the plaintiffs did not have the title then under what circumstances, they received the money since 2011 onwards and in paragraph 7 of the written statement, a contention has been raised that they are ready to return the money. In so far as the decision cited on the scope of Article 227 of the Constitution of India relating and held in India Pipe Fitting Co. (supra) and Sukhveer Narain (supra) is concerned, as a proposition, the same cannot be disputed but again the facts of the said case were quite different, inasmuch as, in Sukhveer Narain (supra), the matter had come up before the Apex Court after exhausting all the remedies as provided under the Uttar Pradesh Consolidation of Holdings Act, 1953 and the orders were final orders and none of the aforesaid decisions hold as an absolute proposition to make this petition non-maintainable so as to thrown out at the admission stage itself. In the instant case where the instant petition has been filed apparently against an interim order and having looked at the judgment and order passed by the First Appellate Court, prima facie three things are noticed:- (i) That the First Appellate Court has entered into the merits of the controversy and apparently has held a mini trial. In light of the findings which have been recorded, there is practically nothing left for the Trial Court to have adjudicated; (ii) The transactions which are the subject matter for which there is a dispute regarding possession, the plaint averments indicate that over the property in question, the plaintiffs have their camp office and apart from protecting the property, a relief has also been sought that the petitioner may not be dispossessed without following due process of law; and 5 A227 No. 5433 of 2025 (iii) The fact whether the petitioner has the possession or not is again a subject matter of evidence which can only be ascertained in case of trial. Nevertheless, in the aforesaid circumstances, it cannot be said that the petition does not raise any arguable point to dismiss it to the threshold of admission. Hence, the preliminary objections are overruled. The matter requires consideration. Since all the private respondents are already represented, hence, no fresh notice is required. Let a counter affidavit be filed within a period of two weeks with an advance copy to the learned counsel for the petitioner, who if may so chose, may file his response/rejoinder within a period of ten days thereafter. List on 15th October, 2025. As an interim protection, it is provided that the parties shall maintain status-quo, as it exists today over the property in question. September 12, 2025 Asheesh (Jaspreet Singh,J.)

Heard Sri Pritish Kumar, learned counsel for the petitioner. Sri Vivek Raj Singh, learned Senior Counsel assisted by Sri Pramod Shukla, learned counsel for the private respondent no. 2 who has put in appearance on caveat and Sri Satish Kumar Mishra, learned counsel for the respondent nos. 1, 3 to 8. Under challenge is the order dated 13.08.2025 passed by the Additional District Judge Court No. 4, District Barabanki in Misc. Civil Appeal No. 18 of 2024 under Order XLIII Rule 1 (r) C.P.C. whereby in an appeal preferred by the private respondents/defendants, assailing an order granting temporary injunction by the Trial Court was allowed as a result, the injunction granted has been set aside. At the outset, Sri Vivek Raj Singh, learned Senior Counsel has filed his preliminary objection regarding the maintainability of the instant petition. He has raised a three pronged submissions to attack the petition on the grounds of maintainability. (i) that the suit filed by the plaintiff-petitioner was itself not maintainable on two counts; (a) that on the date of the filing of the present suit, an earlier suit relating to the same controversy had already been filed and was pending in light thereof the second suit was not maintainable. 2 A227 No. 5433 of 2025 (ii) Considering the averments made in the plaint in suit, prima facie, it was reflected as a fact that the plaintiffs were not in possession of the property in question and in view thereof the suit was simplicitor injunction was not maintainable; (iii) That even otherwise once the Appellate Court has taken a view based on the material evidence on record, it is not open for this Court in exercise of powers under Article 227 of the Constitution of India to sit as an Appellate Court rather the findings of fact which are flowing from the records, howsoever, erroneous cannot be substituted or reversed and for the said reason, this petition for the foregoing reasons is not maintainable. In support of his submissions, Sri Singh has relied upon the decisions of the Apex court in Anthula Sudhakar v. P. Buchi Reddy and others; 2008 (4) SCC 594, M/s India Pipe Fitting Co. v. Fakruddin M.A. Baker and Another; 1977 (4) SCC 587 and Sukhbir Narain v. DDC; 1987 (Supp) SCC 74. Responding to the aforesaid preliminary objections, learned counsel for the petitioner has stated that the father of the private respondents and the petitioner had entered into an arrangement in terms whereof the plots which were described in the plaint were to be purchased, developed and to be sold and in this context, a company was incorporated wherein the father of the private respondents was a director and his other family members were also shareholders along with the plaintiffs. The said company had undertaken the development, in terms whereof consideration was received and from time to time commencing from the year 2011, sale deeds were executed and consideration was also paid to the predecessors-in-interest of the private respondents and after his death even to the private respondents through bank transactions and a sum of Rs. 8 crores and odd in all was paid. It is further urged that since the property in question were certain agricultural plots over which work was developed, hence, the name of the predecessors-in-interest of the private respondents and after his death, his successors continued to be recorded in the revenue records and now the respondents had a change of heart and were attempting to create a third 3 A227 No. 5433 of 2025 party rights, hence, in order to prevent alienation of the said developed plots in favour of any third party by the private respondents, the suit for injunction was filed which came to be registered as Regular Suit No. 675 of 2023. It is further submitted that after the exchange of pleadings, the Trial Court by means of order dated 20th August, 2024 granted an order of status- quo. This order of status-quo was assailed by the private respondents before the Appellate Court under order XLIII Rule (1) (r) read with Section 104 C.P.C., however, the First Appellate Court considering the said appeal has entered into the merits and after holding a mini trial set aside the order of injunction granted by the Trial Court. Thus, the thirst of the submission of learned counsel for the petitioner is that at the stage when an application under Order XXXIX Rule 1 and 2 C.P.C. is under consideration, it is a stage prior to the commencement of trial, where the rights of the parties are in a fluid and moreover the Court is required to consider a prima facie case of the plaintiffs which is not to be confused with the prima facie title. It is also urged that there were several documents placed on record indicating and corroborating the nature of arrangement and the manner in which the same was acted upon by the predecessors-in-interest of the private respondents which continued and in such circumstances, the order granting status-quo did not impinge on the right of any of the parties but was most appropriate to protect the property, till such time, the matter could be considered on merits in trial. However, the First Appellate Court exceeded its jurisdiction while considering the appeal under Order XXXIX Rule 1 and 2 C.P.C., hence, the order is bad. Having considered the aforesaid submissions, apparently, as far as the preliminary objections raised by the private respondents is concerned, suffice to state that the proposition which has been laid down by the Apex Court in the case of Anthulla Sudhakar (supra) relates to the grant of final relief as the said decision arises out of the decision rendered by the courts after the second appeal under Section 100 C.P.C. was exhausted. 4 A227 No. 5433 of 2025 It is in the aforesaid circumstances that the proposition has been laid by the Supreme Court, which apparently is not disputed, but may not be applicable at this stage to make the statutory appeal not maintainable. At this stage where the matter is yet to go to trial, it cannot be said that the suit itself was not maintainable as in light of the averments and certain facts which are not disputed by the defendants as disclosed in their written statements/objections filed regarding the money received by them and it is and in case if there was the submission that the plaintiffs did not have the title then under what circumstances, they received the money since 2011 onwards and in paragraph 7 of the written statement, a contention has been raised that they are ready to return the money. In so far as the decision cited on the scope of Article 227 of the Constitution of India relating and held in India Pipe Fitting Co. (supra) and Sukhveer Narain (supra) is concerned, as a proposition, the same cannot be disputed but again the facts of the said case were quite different, inasmuch as, in Sukhveer Narain (supra), the matter had come up before the Apex Court after exhausting all the remedies as provided under the Uttar Pradesh Consolidation of Holdings Act, 1953 and the orders were final orders and none of the aforesaid decisions hold as an absolute proposition to make this petition non-maintainable so as to thrown out at the admission stage itself. In the instant case where the instant petition has been filed apparently against an interim order and having looked at the judgment and order passed by the First Appellate Court, prima facie three things are noticed:- (i) That the First Appellate Court has entered into the merits of the controversy and apparently has held a mini trial. In light of the findings which have been recorded, there is practically nothing left for the Trial Court to have adjudicated; (ii) The transactions which are the subject matter for which there is a dispute regarding possession, the plaint averments indicate that over the property in question, the plaintiffs have their camp office and apart from protecting the property, a relief has also been sought that the petitioner may not be dispossessed without following due process of law; and 5 A227 No. 5433 of 2025 (iii) The fact whether the petitioner has the possession or not is again a subject matter of evidence which can only be ascertained in case of trial. Nevertheless, in the aforesaid circumstances, it cannot be said that the petition does not raise any arguable point to dismiss it to the threshold of admission. Hence, the preliminary objections are overruled. The matter requires consideration. Since all the private respondents are already represented, hence, no fresh notice is required. Let a counter affidavit be filed within a period of two weeks with an advance copy to the learned counsel for the petitioner, who if may so chose, may file his response/rejoinder within a period of ten days thereafter. List on 15th October, 2025. As an interim protection, it is provided that the parties shall maintain status-quo, as it exists today over the property in question. September 12, 2025 Asheesh (Jaspreet Singh,J.)