# Aalam Ali Khan and Anr v. Smt. Anjul and Ors

- **Citation:** (2013) 3 ILRA 1387
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-09-26
- **Case number:** Civil Misc. Writ Petition No.53092 of 2013
- **Bench:** Sanjay Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aalam-ali-khan-and-anr-v-smt-anjul-and-ors-42711
- **Pages:** 4

## Headnote

Constitution of India, Art.-226- Appeal
against rejection of application-under order
21 rule 97 admitted-prayer for interim
order rejected-submission that as per
verdict of Apex Court once appeal admittedinterim relief must be given-held-petitioner
being stranger failed to produce any
evidence either oral or documentary either
before lower appellate court or before writ
court-rejection of interim relief-held proper.

Held: Para-13 & 14

## Text

3 All] Aalam Ali Khan and Anr. Vs. Smt. Anjul and Ors.
1387
play,
namely,
that
in
the
given
circumstances, the Court will decline to
exercise its extra ordinary jurisdiction under
Article 226 of the Constitution of India and
leaves it to the party to file a petition before
the appropriate Forum, which in the instant
case would be the High Court at Jharkhand.

6. The doctrine of "forum convenience"
was examined by a Full Bench of five Judges
of the Delhi High Court in M/s. Sterling Agro
Industries Ltd. Vs. Union of India and
others, AIR 2011 Delhi 174. The Full Bench
of the Delhi High Court held that, even though,
a part of cause of action has arisen in the State,
where the appellate authority is located, it does
not become the "forum convenience" for a
party to challenge that order in that particular
State, inasmuch as, it is obligatory on the part
of the Court to see the convenience of all the
parties. The Full Bench held that the concept of
"forum convenience" means that it is obligatory
on the part of the Court to see the convenience
of all the parties before it, which would include
the existence of more appropriate forum,
expenses involved, the law relating to the lis,
verification of certain facts which are necessary
for just adjudication of the controversy
involved and its ancillary aspects. The balance
of convenience is also to be taken into
consideration. The Supreme Court in the case
of Kusum Ingots (supra) also touched on the
aspect of forum convenience while opining that
the cause or part of action would entitle the
High Court to entertain the writ petition.

7. In similar situation, where the Debt
Recovery Tribunal of Madhya Pradesh had
passed an order and the Appellate Tribunal at
Allahabad had dismissed the appeal, a writ
petition was filed before this Court, wherein,
the Court declined to entertain the petition
and directed the parties to litigate before the
appropriate forum in Madhya Pradesh. This
judgement,
namely,
M/s.
Dynamic
Education
Systems
(International)
Limited and another Vs. Bank of Baroda
and others, 2012 (8) ADJ 61 is fully
applicable in the instant case.

8. In the light of the aforesaid, the
Court is not inclined to exercise its
discretionary jurisdiction under Article 226
of the Constitution of India and by invoking
the doctrine of "forum convenience", the writ
petition is dismissed with the observation
that it would be open to the petitioner to
litigate and agitate the matter before the High
Court at Jharkhand.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2013

BEFORE
THE HON'BLE SANJAY MISRA, J.

Civil Misc. Writ Petition No.53092 of 2013

Aalam Ali Khan and Anr. ...Petitioners
Versus
Smt. Anjul and Ors. ...Respondents

Counsel for the Petitioner:
Sri Nipun Singh

Counsel for the Respondents:
-----

Constitution of India, Art.-226- Appeal
against rejection of application-under order
21 rule 97 admitted-prayer for interim
order rejected-submission that as per
verdict of Apex Court once appeal admittedinterim relief must be given-held-petitioner
being stranger failed to produce any
evidence either oral or documentary either
before lower appellate court or before writ
court-rejection of interim relief-held proper.

Held: Para-13 & 14
13. The appeal, admittedly is pending and
it is for the petitioners to bring on record
evidence to show that the order of the
1388 INDIAN LAW REPORTS ALLAHABAD SERIES
Executing Court dated 31.07.2013 was
passed on wrong assumption of facts if at
all. The petitioners have failed to bring
before the Executing Court any evidence
either oral or documentary in support of
their contention that they are competent to
obstruct the decree by virtue of their
possession. Even in this writ petition there
is no document to show the possession of
the petitioners except an averment in
paragraph 20.

14.

Under
such
circumstances,
the
rejection of the interim stay application by
the Appellate Court would not amount to
visiting of adverse civil consequences to the
petitioners'
since
they
were
not
in
possession. There is no question of their
being dispossessed so as to say that by the
impugned order the civil consequences are
adverse.

Case Law discussed:
AIR 1997 SC 856; 1983 AWC 121.

(Delivered by Hon'ble Sanjay Misra, J.)

1. Heard Sri Nipun Singh, learned
counsel for the petitioners.

2. Notice need not be issued to the
respondents in view of the order being
passed herein.

3. This writ petition is directed against
the order dated 20.09.2013 passed by the
Additional District Judge, Court No.10,
Muzaffar Nagar, in Civil Appeal No.94 of
2013 (Aalam Ali Khan and others Vs. Smt.
Anjul & others) whereby the stay application
paper no.7-C filed by the petitioners
alongwith the appeal has been rejected.

4.

Learned
counsel
for
the
petitioners has placed reliance on a
decision of the Supreme Court in the case
of Brahmdeo Chaudhary Vs. Rishikesh
Prasad Jaiswal & another reported in
AIR 1997 SC 856 and Mool Chand
Yadav and another Vs. Raza Buland
Sugar Co. Ltd., reported in 1983 AWC
121 to submit that when an appeal is
admitted against an order then an interim
protection should be given to the
appellant so as to avoid any adverse civil
consequences affecting the parties since
the impugned order in the appeal is yet to
be adjudicated by the Appellate Court.

5. Learned counsel states that Execution
Case No.18 of 2003 arose out of an appellate
decree dated 22.05.2000 passed by the
Additional Civil Judge (Sr. Division) Court
No.2, Muzaffar Nagar in Civil Appeal No.466
of 1998. According to Sri Nipun Singh,
learned counsel for the petitioners, the
petitioners were not parties in those
proceedings and they filed an application
dated 30.05.2013 under Order 21 Rule 97
CPC, however, the said application under
Order 21 Rule 97 CPC was rejected by the
Executing Court by its order dated 31.07.2013
where against they preferred the instant
Appeal No.94 of 2013 and filed an application
paper no.7-C for grant of interim relief.

6. He states that the Appellate Court
while entertaining and admitting the appeal
has refused to grant any interim protection
for invalid reasons. Sri Nipun Singh states
that refusal to grant interim protection by the
Appellate Court is only for the reason that
there are many respondents in the appeal and
they have to be heard. He states that this is
not a ground on which the interim protection
application can be refused by the Appellate
Court after admitting the appeal.

7. Having considered the submission
of learned counsel for the petitioners and
perused the record, it appears that by the
order dated 31.07.2013 passed in Misc. Case
No.18 of 2003 the application under Order
21 Rule 97 CPC filed by the petitioners was
3 All] Aalam Ali Khan and Anr. Vs. Smt. Anjul and Ors.
1389
rejected.
While
dismissing
the
said
application it was held that the petitioners are
not in possession over the land in question.
The Appellate Court while considering the
interim application against the said judgment
of the Executing Court was of the view that
an ex-parte interim order should not be
granted during pendency of the appeal since
caveat has been filed and further held that no
grounds have been made out for staying the
execution proceedings. The said view of the
Appellate Court is quoted hereunder:-

"esjs }kjk mDr fof/k O;oLFkkvksa dk llEeku
ifj'khyu fd;k x;kA ;g ckr lgh gS fd vihy ;k
fuxjkuh ds ntZ gksus ds le; vihyh; U;k;ky; dks
i{kdkjksa ds vf/kdkjksa dks /;ku esa j[kuk pkfg, vkSj voj
U;k;ky; ds vkns'k dk fdz;kUo;u LFkfxr lkekU;r%
fd;k tkuk pkfg, tks fd vihyh; U;k;ky; dh
vf/kdkfjrk esa Hkh gSA ijUrq izLrqr izdj.k esa ewy okn
lu 1981 dk Fkk vkSj mlesa ikfjr fu.kZ; ds fu"iknu
dh dk;Zokgh la0 03 lu 2001 ls yfEcr gSA
vihykFkhZx.k }kjk fu"iknu U;k;ky; ds le{k viuh
vkifRr U/o 21 fu;e 97 lh-ih-lh- o"kZ 2003 esa izLrqr
dh Fkh ftlds fuLrkj.k esa Hkh 10 o"kZ yx x;s gSA bl
izdj.k esa jsLiksMsUV nhik }kjk dsfo;V Hkh izLrqr dh x;h
gS vkSj 5 fjLiksMsUV bl vihy esa i{kdkj gS ;fn
,di{kh; :i ls LFkxu dk vkns'k ikfjr dj fn;k tkrk
gS rks fu"iknu dh dk;Zokgh fudV Hkfo"; esa iw.kZ ugha gks
ldsxhA ,slh n'kk esa fu"iknu dh dk;Zokgh dks jksds
tkus dk dksbZ vk/kkj bl Lrj ij ;g U;k;ky; ugha
ikrh gSA vr% izk0i= x&7 bl Lrj ij rnuqlkj
fuLrkfjr fd;k tkrk gSA

i=koyh okLrs cgl fnukad 18&10&13 dks
is'k gksA jsLiksUMsUVl ds fo:) uksfVl tkjh gksA
vihykFkhZ vko';d iSjoh vUnj rhu fnu djsaA "

8. A perusal of the aforesaid order
indicates that there are two reasons why
the Appellate Court has refused to grant
interim order. The first is that an ex-parte
order of stay is not required because a
caveat has been filed and the second is
that there is no ground made out for
stopping the execution proceedings. It is
here that Sri Nipun Singh refers to the
decision in the case of Brahm Dutt
Chaudhary (Supra) and Mool Chand
Yadav (Supra) to submit that the said
view of the Appellate Court is illegal.

9. In the case of Mool Chand Yadav
(Supra) it was admitted that Mool Chand
Yadav was in possession of and occupying
one room of Hari Bhawan. In the suit filed
by the corporation an injunction was issued
restraining Mool Chand Yadav from
occupying the room. An appeal was then
filed by Mool Chand Yadav but the
Appellate Court although admitted the
appeal it declined to grant stay. The Supreme
Court under these circumstances found that
the possession of Mool Chand Yadav was
not disputed then a stay was to be granted
during pendency of the appeal since non
grant of a stay would have serious civil
consequence to Mool Chand Yadav in case
his appeal was allowed later.

10. In the case of Brahmdeo
Chaudhary (Supra) the Supreme Court was
considering a case where it held that the
obstructor could not be dispossessed under
order XXI Rule 97 CPC for the reason that
his claim would be adjudicated and then he
could move an application under Order XXI
Rule 99 CPC.

11. The submission of Sri Nipun Singh
tested on the view taken by the Executing
Court and Appellate Court indicates that the
petitioners are not in possession over the
property in question. That being so the order
of the Executing Court requires to be gone
into. The Executing Court in its order dated
31.07.2013
has
recorded
as
quoted
hereunder:-

"blds vfrfjDr izkFkhZx.k }kjk vius dFku ds
leFkZu esa ekSf[kd lk{; esa lk{kh i-MCyw-&01 ds :i
es Lo;a izkFkhZ la[;k&02 rlOoj vyh us viuh izfr
1390 INDIAN LAW REPORTS ALLAHABAD SERIES
ijh{kk esa dFku fd;k gS fd ;g dguk lgh gS fd
dkxtkr eky tks eSusa nkf[ky fd;s gS buesa [k0
ua0&938 o 1140 esa vkcknh vafdr ugha gSA blh izdkj
lk{kh ih-MCyw-&02 v;;wc us viuh izfr ijh{kk esa dFku
fd;k gS fd fookfnr ?ksj dkSu ls [k0 ua0 [ksoV esa gS
eq>s ugha irk] ekfydku dks irk gksxkA bl izdkj
izkFkhZx.k ds mijksDr ekSf[kd lk{; ls Hkh fookfnr Hkwfe
ij izkFkhZx.k dk LoRo lkfcr ugha gSA blds vfrfjDr
lk{kh ih-MCyw-&01 ds :i esa Lo;a izkFkhZ rlOoj us viuh
izfr ijh{kk esa dFku fd;k gS fd eq>s ugha irk fd
fookfnr [ksoV esa ykyk ckxs'oj n;ky o 'kadjyky dk
batu yxk gqvk gS ;k ughaA eq>s ugha irk fd ?ksj
fookfnr ds ckjs esa ykyk 'kadj n;ky o ckxs'oj n;ky
ds gd esa dksbZ fdjk;kukek fy[kk x;k Fkk ;k ughaA eq>s
ugha irk fd bu yksxks us dksbZ fdjk;k vnk fd;k ;k
ughaA bl izdkj izkFkhZ ds mijksDr lk{; ls fookfnr
lEifRr ij izkFkhZx.k dk dCtk Hkh lkfcr ugha gksrkA "

12. From the aforesaid extract of the
said order it is clear that the petitioners while
pursuing their application under Order 21
Rule 97 CPC have failed to bring any iota of
evidence that they are in possession and are
competent to obstruct the decree. This is not
a case where the petitioners obstructor are
sought to be dispossessed under Order 21
Rule 97 CPC and after adjudication to be
given possession again. This is a case where
the petitioners have failed to prove or even to
prima-facie indicate that they were ever in
possession of the property in question. Under
such circumstances, if the Appellate Court
grants an interim protection to the petitioners
staying the order of the Executing Court it
would amount to giving possession to the
petitioners of a property over which they are
not in possession. As such the case of
Brahm Dutt Chaudhary (Supra) and
Mool Chand Yadav (Supra) are not at all
applicable in the present case.

13. The appeal, admittedly is
pending and it is for the petitioners to
bring on record evidence to show that the
order of the Executing Court dated
31.07.2013
was
passed
on
wrong
assumption of facts if at all. The petitioners
have failed to bring before the Executing
Court
any
evidence
either
oral
or
documentary in support of their contention
that they are competent to obstruct the decree
by virtue of their possession. Even in this
writ petition there is no document to show
the possession of the petitioners except an
averment in paragraph 20.

14. Under such circumstances, the
rejection of the interim stay application by the
Appellate Court would not amount to visiting
of adverse civil consequences to the
petitioners' since they were not in possession.
There is no question of their being
dispossessed so as to say that by the impugned
order the civil consequences are adverse.

15. The writ petition has no merit. It
is, accordingly, dismissed.

16. No order is passed as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.10.2013

BEFORE
THE HON'BLE SANJAY MISRA, J.

Civil Misc. Writ Petition No.54960 of 2013

Gaurav Arya & Ors.
 ...Petitioners
Versus
The Civil Judge Hathras & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Keshari Nath Tripathi, Sri P.K. Singh
Sri C.P. Gupta

Counsel for the Respondents:
Sri Sanjay Kumar Dubey, Sri Rahul Sahai

C.P.C. Order XXI, Rule-198, 101- Execution
of decree-petitioner raised objection-from