# Ashok Kumar Katiyar v. Charan Jeet Singh & Ors

- **Citation:** (2024) 8 ILRA 1023
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-01
- **Case number:** First Appeal From Order No. 52 of 2024
- **Bench:** Vipin Chandra Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-katiyar-v-charan-jeet-singh-ors-52371
- **Pages:** 5

## Headnote

Civil Law -Civil Procedure Code,1908 -
Section 151 - First Appeal- against order
granting temporary injunction Order 39
Rule 1 and 2 read with CPC- plaintiff no. 1
has purchased the suit property through
registered
sale
deed-plaintiff
in
possession-memorandum of undertakingdefendant under obligation to transfer
petrol pump in favour of plaintiff after
completing formalities-no efforts made by
him-ex-parte interim order granted in
favour
of
plaintiff-Section
12A
of
Commercial
Court
Act-pre-litigation
mediation
and
settlement-mandatory
where in suit no urgent relief is requiredinstant case is distinct-urgent relief was
required-defendant was interfering in the
possession of petrol pump-remedy to file
application under Order 39 Rule 4- against
ex
parte interim order
is
available-
present
appeal
not
maintainabledismissed. (paras 9 to 12)
HELD:
Section 12A (1) provides that pre-institution
mediation is mandatory, where in the suit there
is no urgent interim relief is required, but in the
present case, as the defendant is interfering in
operation of petrol pump and there was an
urgent need of interim relief, the provisions of
Section 12A are not attracted in the present
case. (para 10)

Since the interim injunction was granted by the
learned trial court is ex-parte, the defendantappellant has a remedy to file application for
vacating / recalling of ex-parte injunction order
under Order 39 Rule 4 C.P.C. Statutory remedy
is available to the defendant-appellant to
approach the trial court by filing application for
vacating the ex-parte order. (Para 11)

From a bare perusal of Order 39 rule 4 C.P.C., it
is apparent that the defendant has a remedy to
move application for setting aside the ex-parte
order. Since, the appellant has a statutory
remedy under Order 39 Rule 4 C.P.C. to file such
application for setting aside the ex-parte
injunction order, the present appeal on behalf of
defendant-appellant is not maintainable and is
liable to be dismissed. (Para 12)

Appeal dismissed. (E-14)

List of Cases cited:

M/s. Patil Automation Pvt. Ltd. & ors. Vs
Rakheja Engineers Pvt. Ltd. reported in 2022
(10) SCC 1

## Text

8 All. Ashok Kumar Katiyar Vs. Charan Jeet Singh & Ors.
1023
----------
(2024) 8 ILRA 1023
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2024

BEFORE

THE HON'BLE VIPIN CHANDRA DIXIT, J.

First Appeal From Order No. 52 of 2024

Ashok Kumar Katiyar ...Appellant
Versus
Charan Jeet Singh & Ors. ...Respondents

Counsel for the Appellant:
Sri Shivam Shukla, Sri Sushil Kumar Shukla

Counsel for the Respondents:
Sri Komal Mehrotra, Sri Rahul Sahai

Civil Law -Civil Procedure Code,1908 -
Section 151 - First Appeal- against order
granting temporary injunction Order 39
Rule 1 and 2 read with CPC- plaintiff no. 1
has purchased the suit property through
registered
sale
deed-plaintiff
in
possession-memorandum of undertakingdefendant under obligation to transfer
petrol pump in favour of plaintiff after
completing formalities-no efforts made by
him-ex-parte interim order granted in
favour
of
plaintiff-Section
12A
of
Commercial
Court
Act-pre-litigation
mediation
and
settlement-mandatory
where in suit no urgent relief is requiredinstant case is distinct-urgent relief was
required-defendant was interfering in the
possession of petrol pump-remedy to file
application under Order 39 Rule 4- against
ex
parte interim order
is
available-
present
appeal
not
maintainabledismissed. (paras 9 to 12)
HELD:
Section 12A (1) provides that pre-institution
mediation is mandatory, where in the suit there
is no urgent interim relief is required, but in the
present case, as the defendant is interfering in
operation of petrol pump and there was an
urgent need of interim relief, the provisions of
Section 12A are not attracted in the present
case. (para 10)

Since the interim injunction was granted by the
learned trial court is ex-parte, the defendantappellant has a remedy to file application for
vacating / recalling of ex-parte injunction order
under Order 39 Rule 4 C.P.C. Statutory remedy
is available to the defendant-appellant to
approach the trial court by filing application for
vacating the ex-parte order. (Para 11)

From a bare perusal of Order 39 rule 4 C.P.C., it
is apparent that the defendant has a remedy to
move application for setting aside the ex-parte
order. Since, the appellant has a statutory
remedy under Order 39 Rule 4 C.P.C. to file such
application for setting aside the ex-parte
injunction order, the present appeal on behalf of
defendant-appellant is not maintainable and is
liable to be dismissed. (Para 12)

Appeal dismissed. (E-14)

List of Cases cited:

M/s. Patil Automation Pvt. Ltd. & ors. Vs
Rakheja Engineers Pvt. Ltd. reported in 2022
(10) SCC 1

(Delivered by Hon'ble Vipin Chandra
Dixit, J.)

1. This first appeal from order has
been filed on behalf of defendant-appellant
against the order dated 28.08.2023, passed
by Commercial Court, Kanpur Nagar, in
Commercial Suit No. 46 of 2023 (Charan
Jeet Singh and others vs. Ashok Kumar
Katiyar and another) by which temporary
injunction was granted in favour of
plaintiffs on the application filed under
Order 39 rule 1 & 2 read with Section 151
C.P.C. (Paper No. 6-C). The defendantappellant was restrained to interfere in
peaceful
possession
of
plaintiffsrespondents over property no. 117/A-1,
situated at Arazi Nos. 594, 595 and 596 in
village Barsaitpur Tehsil & District Kanpur
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
Nagar. The defendant was also restrained to
interfere in operation of petrol pump, its
bank account and to maintain status quo in
respect of suit property.

2. Heard Sri Sushil Kumar Shukla,
learned counsel for the appellant, Sri Rahul
Sahai, learned counsel for the respondents
and perused the record.

3. Brief facts of the case are that the
defendant-appellant was the owner and in
possession of property no. 17/A-1, situated
over Arazi Nos. 594, 595 and 596 in village
Barsaitpur Tehsil & District Kanpur Nagar.
The defendant-appellant has sold 700 sq.
yards (585.27 sq. meter) land of the
aforesaid property to the plaintiff along
with petrol pump through registered sale
deed on 24.02.2020. The possession of
petrol pump had already been handed over
by defendant appellant to the plaintiffrespondent no. 1 on 19.10.2019. A
memorandum of undertaking was executed
between the parties on 27.06.2019. It was
agreed between the parties that the
plaintiff-respondent no. 1 will pay Rs.
6,25,00,000/- to the defendant-appellant as
sale consideration. The plaintiff no. 1 had
already paid Rs. 1,00,00,000/- at the time
of
execution
of
memorandum
of
undertaking and the remaining amount was
agreed to pay at the time of execution of
sale deed. It was also agreed that
defendant-appellant will transfer petrol
pump to the plaintiff no. 1 after completing
formalities with Hindustan Petroleum. The
defendant-appellant had sent legal notice to
the plaintiff no. 1 in the month of
December, 2019 admitting therein that he
received
Rs.
2,23,00,000/-
and
Rs.
4,02,00,000/- is still outstanding. The sale
deed in respect of petrol pump as well as
suit property was executed by defendantappellant in favour of plaintiff-respondent
no. 1 on 24.02.2020 and possession was
also handed over to the plaintiff-respondent
no. 1.

4. The petrol pump is being run by
plaintiff, but defendant-appellant has failed
to complete the formalities for transfer of
petrol pump in favour of plaintiff and
demanding
extra
Rs.
1,00,00,000/-,
whereas, entire sale consideration has
already been paid by the plaintiff at the
time of execution of sale deed.

5. The plaintiffs-respondents have
filed suit for injunction seeking direction
that
the
defendant-appellant
may
be
directed to transfer the petrol pump in
pursuance of sale deed dated 24.02.2020 in
favour
of
plaintiff
after
completing
formalities with Hindustan Petroleum. It is
further prayed in the suit that the
defendant-appellant and his agents may be
restrained from interfering in peaceful
possession of plaintiff-respondent no. 1 in
respect of suit property. The plaintiffsrespondents
have
also
moved
an
application for interim injunction under
Order 39 rules 1 & 2 read with Section 151
C.P.C. (Paper No. 6C). The trial court after
considering the fact that petrol pump along
with suit property has already been
purchased by plaintiff-respondent no. 1
through registered sale deed on 24.02.2020
and he is in possession over the same, has
granted ex-parte injunction in favour of
plaintiffs-respondents vide order dated
28.08.2023, which is impugned in the
present appeal.

6. It is submitted by learned counsel
for the defendant-appellant that the plaintiff
had failed to pay the remaining amount in
terms of memorandum of undertaking
dated 27.06.2019. It is further submitted
that as per memorandum of undertaking the
8 All. Ashok Kumar Katiyar Vs. Charan Jeet Singh & Ors.
1025
plaintiff-respondent no. 1 was required to
pay Rs. 6,25,00,000/- and only Rs.
1,00,00,000/- was paid at time time of
memorandum
of
undertaking
dated
27.06.2019 and Rs. 4,00,00,000/- was paid
at the time of execution of sale deed. Rs.
1,25,00,000/- is still unpaid by the
plaintiffs. It is further submitted that the
present suit has been filed by the plaintiffrespondent no. 1 on altogether incorrect
facts only to save the unpaid amount. The
plaintiffs-respondents by concealing the
material facts have filed suit for injunction
and they did not approach the trial court
with clean hands. The trial court has also
erred in granting ex-parte injunction in
favour
of
plaintiffs-respondents.
The
plaintiffs were required to make efforts for
mediation and settlement before filing of
suit in view of Section 12 A of Commercial
Court's Act, 2015, but without exhausting
the remedy of pre-institution mediation, the
present suit was filed. He has placed
reliance on the judgment of Hon'ble Apex
Court in the case of M/s. Patil Automation
Private Limited and others vs. Rakheja
Engineers Private Limited reported in
2022 (10) SCC 1.

7. On the other hand, learned counsel
appearing
for
plaintiffs-respondents
submits that the entire sale consideration
has already been paid by the plaintiffrespondent no. 1 to the defendant no. 1 at
the time of execution of sale deed. The
plaintiff-respondent no. 1 is in possession
over the suit property. It is further
submitted
that
the
trial
court
after
considering
the
entire
evidence
and
materials
adduced
by
the
plaintiffrespondent no. 1 has recorded the finding
regarding prima-facie case in favour of
plaintiff-respondent no. 1 as the suit
property was purchased by the plaintiff
after payment of agreed sale consideration.
The possession of suit property was already
handed over to plaintiff-respondent no. 1
and he is in possession over the same. The
petrol pump is now operated by the
plaintiffs and the trial court has rightly
passed the order dated 28.08.2023 granting
interim injunction in favour of plaintiffrespondent no. 1. The learned trial court
has recorded the finding that the plaintiff is
in possession over the suit property and is
operating petrol pump. The trial court after
its satisfaction has passed the temporary
injunction
in
favour
of
plaintiffsrespondents. Lastly, it is submitted that the
appeal against the ex-party injunction is not
maintainable under Order 43 Rule 1(r)
C.P.C. The defendant-appellant has right to
file application for vacating / recalling of
ex-parte injunction order in view of Order
39 Rule 4 C.P.C. The provisions of Section
12A of Commercial Court Act are also not
applicable, as the plaintiff required urgent
interim
relief
against
the
defendantappellant.

8. Considered the submissions of
learned counsel for the parties and perused
the record.

9. It is admitted fact that the plaintiff
no. 1 has purchased the suit property
through
registered
sale
deed
dated
24.02.2020 and is in possession over the
same. The petrol pump in question is
operated
by
the
plaintiffs.
As
per
memorandum of undertaking, the defendant
is required to transfer the petrol pump in
favour of plaintiff no. 1 after completing
formalities with Hindustan Petroleum. The
defendant has not made any efforts to
complete the formalities with Hindustan
Petroleum to transfer the petrol pump in
favour of plaintiff no. 1. The trial court
after recording its satisfaction that primafacie case is in favour of plaintiffs has
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
passed ex-parte interim injunction in favour
of plaintiffs vide order dated 28.08.2023.

10. So far as pre-litigation mediation
and settlement is concerned, the defendantappellant has not taken any such ground in
the memo of appeal. Section 12A(1) of
Commercial Court Act is reproduced herein
below :-

"12A. Pre-Institution Mediation
and Settlement.-- (1) A suit, which does not
contemplate any urgent interim relief under
this Act, shall not be instituted unless the
plaintiff exhausts the remedy of preinstitution mediation in accordance with
such manner and procedure as may be
prescribed by rules made by the Central
Government."

From the bare perusal of Section
12A(1), it is apparent that it is applicable
where urgent interim relief is not required.
Record shows that the defendant was
interfering in functioning of petrol pump
and there was an urgent need of interim
injunction.

The Hon'ble Apex Court in the
case of M/s. Patil Automation Private
Limited and others vs. Rakheja Engineers
Private Limited (supra) has held that
mediation is mandatory, where the plaintiff
does not contemplate urgent interim relief.
Relevant paragraph no. 72 is reproduced
herein below :-

"72.
We
may
sum-up
our
reasoning as follows:

The Act did not originally contain
Section 12A. It is by amendment in the year
2018 that Section 12A was inserted. The
Statement of Objects and Reasons are
explicit that Section 12A was contemplated
as compulsory. The object of the Act and
the Amending Act of 2018, unerringly point
to at least partly foisting compulsory
mediation on a plaintiff who does not
contemplate urgent interim relief. The
provision has been contemplated only with
reference
to
plaintiffs
who
do
not
contemplate urgent interim relief. The
Legislature has taken care to expressly
exclude the period undergone during
mediation for reckoning limitation under
the Limitation Act, 1963. The object is
clear. It is an undeniable reality that
Courts in India are reeling under an
extraordinary docket explosion. Mediation,
as an Alternative Dispute Mechanism, has
been identified as a workable solution in
commercial matters. In other words, the
cases under the Act lend themselves to be
resolved through mediation. Nobody has an
absolute right to file a civil suit. A civil suit
can be barred absolutely or the bar may
operate unless certain conditions are
fulfilled. Cases in point, which amply
illustrate this principle, are Section 80 of
the CPC and Section 69 of the Indian
Partnership Act. The language used in
Section 12A, which includes the word
'shall', certainly, go a long way to assist the
Court to hold that the provision is
mandatory. The entire procedure for
carrying out the mediation, has been spelt
out in the Rules. The parties are free to
engage Counsel during mediation. The
expenses, as far as the fee payable to the
Mediator, is concerned, is limited to a onetime fee, which appears to be reasonable,
particularly, having regard to the fact that
it is to be shared equally. A trained
Mediator can work wonders. Mediation
must be perceived as a new mechanism of
access to justice. We have already
highlighted its benefits. Any reluctance on
the part of the Court to give Section 12A, a
mandatory interpretation, would result in
defeating the object and intention of the
Parliament. The fact that the mediation can
become a non-starter, cannot be a reason
to hold the provision not mandatory.
8 All. State of U.P. Vs. Sandeep Vishwakarma
1027
Apparently, the value judgement of the
Law-giver is to give the provision, a
modicum
of
voluntariness
for
the
defendant, whereas, the plaintiff, who
approaches the Court, must, necessarily,
resort to it. Section 12A elevates the
settlement under the Act and the Rules to
an award within the meaning of Section
30(4) of the Arbitration Act, giving it
meaningful enforceability. The period spent
in mediation is excluded for the purpose of
limitation. The Act confers power to order
costs based on conduct of the parties."

Section 12A(1) provides that preinstitution mediation is mandatory, where
in the suit there is no urgent interim relief is
required, but in the present case, as the
defendant is interfering in operation of
petrol pump and there was an urgent need
of interim relief, the provisions of Section
12A are not attracted in the present case.

11. Since the interim injunction was
granted by the learned trial court is exparte, the defendant-appellant has a remedy
to file application for vacating / recalling of
ex-parte injunction order under Order 39
Rule 4 C.P.C. Statutory remedy is available
to the defendant-appellant to approach the
trial court by filing application for vacating
the ex-parte order. The provisions of Order
39 Rule 4 C.P.C. are reproduced herein
below :-

"4. Order for injunction may be
discharged, varied or set aside. - Any order
for an injunction may be discharged, or
varied, or set aside by the Court, on
application made thereto by any party
dissatisfied with such order:

[Provided that if in an application
for temporary injunction or in any affidavit
supporting such application, a party has
knowingly made a false or misleading
statement in relation to a material particular
and the injunction was granted without giving
notice to the opposite party, the Court shall
vacate the injunction unless, for reasons to be
recorded, it considers that it is not necessary
so to do in the interest of justice:

Provided further that where an
order for injunction has been passed after
giving to a party an opportunity of being
hears, the order shall not be discharged,
varied, or set aside on the application of that
party except where such discharge, variation
or setting aside has been necessitated by a
change in the circumstances, or unless the
Court is satisfied that the order has been
caused undue hardship to that party.]"

12. From a bare perusal of Order 39
rule 4 C.P.C., it is apparent that the defendant
has a remedy to move application for setting
aside the ex-parte order. Since, the appellant
has a statutory remedy under Order 39 Rule 4
C.P.C. to file such application for setting
aside the ex-parte injunction order, the
present appeal on behalf of defendantappellant is not maintainable and is liable to
be dismissed.

13. The first appeal from order is
accordingly, dismissed.
----------
(2024) 8 ILRA 1027
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.08.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Government Appeal Defective No. 182 of 2024

State of U.P. ...Appellant
Versus
Sandeep Vishwakarma ...Respondent

Counsel for the Appellant: