# Ayaz Ahmad & Ors v. Civil Judge (Jn. Dv.), Sultanpur & Ors

- **Citation:** (2023) 10 ILRA 1030
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-17
- **Case number:** Matters Under Article 227 No. 5218 of 2023
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ayaz-ahmad-ors-v-civil-judge-jn-dv-sultanpur-ors-49254
- **Pages:** 5

## Headnote

(A) The Constitution of India, 1950 -
Article 227 - Supervisory jurisdiction - The
Code of Civil Procedure, 1908 - Section 82
- Execution of decree, Order-39, Rule-3 -
Before granting injunction ,Court to direct
notice to opposite party , Section 148-A -
Right to lodge a caveat, The U.P.
Zamindari Abolition and Land Reforms
Act,1950 - Section 123 , The U.P. Revenue
Code-2006 - Section 67-A(i) - Certain
house sites to be settled with existing
owner thereof - even if the caveator does
not show his right in regard to issue in
question and wants to be heard before
any order is passed on the application, he
has a right to be heard before passing any
order, if the caveat has been lodged by
him. (Para - 9)

Petitioners were directed to remove an alleged
encroachment - filed suit for permanent
injunction - application for interim injunction -
trial court passed order without considering
provisions of Order-39, Rule-3 C.P.C. - due to
urgency no requirement of issuance of notice to
opposite parties - Order passed by Civil court -
under challenge - direction - not to demolish
housing abode - not to dislodge peaceful
occupation of petitioners over land - to decide
interim injunction application on merits -
observation of trial court - caveat filed - without
hearing caveator/ defendants not appropriate to
pass an ex-parte order - issued notice to
caveator/ defendant - neither counsels for
defendants were present nor caveator - when
case was taken up.(Para - 2,3,7)

HELD:- No illegality or error in the impugned
order in issuing notice to the caveator, if he was
not served.
Order dated 20.09.2023 has
been properly passed and there is no illegality
or error. Petition misconceived and lacks merit
in challenging the order.
(Para - 10,12 )

Petition dismissed. (E-7)

## Text

1030 INDIAN LAW REPORTS ALLAHABAD SERIES
may be awarded to the accused-opposite
parties. We also find that there is no such
circumstances, which may be said to be the
rarest of the rare circumstances so as to
inflict death penalty under Section 302/34
I.P.C. against the accused-opposite parties.
Therefore, we agree with the request made
by learned counsels for the parties and,
accordingly, sentence the accused-opposite
parties
with
life
imprisonment.
The
accused-opposite party nos.1, 3 and 4 shall
surrender before the Court concerned
forthwith and they shall be sent to jail to
serve out the sentence awarded by us.

27. The C.J.M. concerned is directed
to take the accused-opposite party nos.1, 3
and 4 into custody and send them to jail to
serve out the sentence. The accusedopposite party no.2 has already died and
appeal qua the accused-opposite party no.2
has already been abated, as mentioned
above.

28. A copy of this judgement be sent
to the trial court for compliance and office
shall return the trial court record forthwith.

----------
(2023) 10 ILRA 1030
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.10.2023

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Matters Under Article 227 No. 5218 of 2023

Ayaz Ahmad & Ors. ...Petitioners
Versus
Civil Judge (Jn. Dv.), Sultanpur & Ors.
 ...Respondents

Counsel for the Petitioners:
Pradeep Kumar Shukla
Counsel for the Respondents:
C.S.C., Mohan Singh

(A) The Constitution of India, 1950 -
Article 227 - Supervisory jurisdiction - The
Code of Civil Procedure, 1908 - Section 82
- Execution of decree, Order-39, Rule-3 -
Before granting injunction ,Court to direct
notice to opposite party , Section 148-A -
Right to lodge a caveat, The U.P.
Zamindari Abolition and Land Reforms
Act,1950 - Section 123 , The U.P. Revenue
Code-2006 - Section 67-A(i) - Certain
house sites to be settled with existing
owner thereof - even if the caveator does
not show his right in regard to issue in
question and wants to be heard before
any order is passed on the application, he
has a right to be heard before passing any
order, if the caveat has been lodged by
him. (Para - 9)

Petitioners were directed to remove an alleged
encroachment - filed suit for permanent
injunction - application for interim injunction -
trial court passed order without considering
provisions of Order-39, Rule-3 C.P.C. - due to
urgency no requirement of issuance of notice to
opposite parties - Order passed by Civil court -
under challenge - direction - not to demolish
housing abode - not to dislodge peaceful
occupation of petitioners over land - to decide
interim injunction application on merits -
observation of trial court - caveat filed - without
hearing caveator/ defendants not appropriate to
pass an ex-parte order - issued notice to
caveator/ defendant - neither counsels for
defendants were present nor caveator - when
case was taken up.(Para - 2,3,7)

HELD:- No illegality or error in the impugned
order in issuing notice to the caveator, if he was
not served.
Order dated 20.09.2023 has
been properly passed and there is no illegality
or error. Petition misconceived and lacks merit
in challenging the order.
(Para - 10,12 )

Petition dismissed. (E-7)

(Delivered by Hon'ble Rajnish Kumar, J.)
10 All. Ayaz Ahmad & Ors. Vs. Civil Judge (Jn. Dv.), Sultanpur & Ors.
1031

1. Heard Shri Skand Bajpai, Advocate
holding brief of Shri Pradeep Kumar
Shukla, learned counsel for the petitioners,
learned Additional Chief Standing Counsel
and Shri Mohan Singh, learned counsel for
the opposite party no.6.

2. This petition has been filed for
setting-aside the order dated 20.09.2023
passed in Original Suit No.723 of 2023 by
the Civil Judge, Junior Division, Kadipur,
District- Sultanpur. A further prayer has
been made for direction not to demolish the
housing abode described in the foot of
plaint and they may not dislodge the
peaceful possession and occupation of
petitioners over the land in question
described in the foot of plaint and for a
direction for deciding the application for
interim injunction on merits on the next
date fixed.

3. Learned counsel for the petitioners
submits that on the basis of spot inspection
on
10.09.2023,
the
petitioners
were
directed
to
remove
the
alleged
encroachment made by the petitioners on
10x10 part of Gata No.20/0.038 hec.,
which is recorded as Naveen Parti and
encroached by the petitioners which has
been selected for R.R.C. Center. It has
further been observed that in the notice, in
case the petitioners do not violate the
direction issued by the authorities, the
temporary
encroachment
would
be
removed immediately. Being aggrieved by
the said notice, the petitioners, after a
notice under Section 82 of the C.P.C., filed
a suit for permanent injunction before the
Civil Judge, Junior Division, Kadipur,
District-
Sultanpur
alongwith
an
application for interim injunction. The
application for interim injunction has not
been considered merely on the ground that
there is a caveat by a private person and
without notice to him the same can not be
heard, whereas there was no occasion for a
private person to file a caveat in regard to
the government land and caveat has been
filed by the husband of the Gram Pradhan
due to political reason so that the
petitioners may not get any indulgence
from the trial court. The learned trial court,
without considering the provisions of
Order-39, Rule-3 C.P.C. that on account of
urgency in the matter, there is no
requirement of issuance of notice to the
opposite parties, passed the impugned
order,
therefore,
the
petitioners
are
constrained to approach this Court and
submit that the order passed by the trial
court may be set-aside and the injunction
may be granted.

4. Learned Additional Chief Standing
Counsel submits that once a caveat was
filed, it is for the concerned court to see
that the orders are not passed without any
opportunity to the caveator, therefore there
is no illegality or error in the impugned
order. He further submits that petitioners
have filed a suit for permanent injunction
without
any
prayer
for
declaration,
therefore no injunction can be granted
against the owners. The petitioners have
disclosed in paragraph-4 of the plaint that
the petitioners have perfected their right
under Section 123(1) of the U.P. Zamindari
Abolition and Land Reforms Act and
Section 67-A(i) of the U.P. Revenue Code2006 and they have become owner of the
land in dispute, therefore unless they are
able to show as to how they are owner of
the land in dispute, they are not entitled for
injunction.

5. Learned counsel for the Gaon
Sabha also adopting the submissions of
learned Additional Chief Standing Counsel
submits that since the suit for permanent
1032 INDIAN LAW REPORTS ALLAHABAD SERIES
injunction has only been filed without any
prayer for declaration, no injunction can be
granted against the true owner.

6. I have considered the submissions
of learned counsel for the parties and
perused the record.

7. This petition has been filed
challenging the order dated 20.09.2023
passed in Regular Suit No.723 of 2023 by
Civil Judge (J.D) Kadipur, Sultanpur, by
means of which the trial court has observed
that a caveat has been filed in the matter
therefore without hearing the caveator/
defendants it would not be appropriate to
pass an ex-parte order and issued the notice
to the caveator/ defendant. It appears that
neither the counsels for the defendants
were present, when the regular suit filed by
the petitioner alongwith an application for
interim injunction was taken up by the trial
court nor the caveator.

8. A copy of the caveat has been
placed on record by the petitioners as
annexure no.7. Perusal of the caveat filed
by the private opposite party i.e. opposite
party no.7 indicates that it has been filed
stating that he is residing on the land in
dispute, which is a Gram Sabha land and he
has come to know that the opposite party
wants to harass him by filing a false suit in
the court. He has further given the
boundaries of the land in dispute with a
prayer that in case any suit is filed in regard
to the land in dispute, no order may be
passed without opportunity to him.

9. Section 148-A of the Civil
Procedure Code- 1948 provides that where
an application is expected to be made, or
has been made, in a suit or proceeding
instituted, or about to be instituted, in a
Court, any person claiming a right to
appear before the Court on the hearing of
such application may lodge a caveat in
respect thereof, therefore the provision
makes it clear that even if the caveator does
not show his right in regard to issue in
question and wants to be heard before any
order is passed on the application, he has a
right to be heard before passing any order,
if the caveat has been lodged by him.
Section 148-A of C.P.C. is extracted herein-below:-

"148-A.
Right
to
lodge
a
caveat.?(1) Where
an
application
is
expected to be made, or has been made, in
a suit or proceeding instituted, or about to
be instituted, in a Court, any person
claiming a right to appear before the Court
on the hearing of such application may
lodge a caveat in respect thereof.

(2) Where a caveat has been
lodged under sub-section (1), the person by
whom
the
caveat
has
been
lodged
(hereinafter referred to as the caveator)
shall serve a notice of the caveat by
registered post, acknowledgment due, on
the person by whom the application has
been, or is expected to be, made, under
sub-section (1).

(3) Where, after a caveat has
been lodged under sub-section (1), any
application is filed in any suit or
proceeding, the Court, shall serve a notice
of the application on the caveator.

(4) Where a notice of any caveat
has been served on the applicant, he shall
forthwith furnish the caveator at the
caveator's expense, with a copy of the
application made by him and also with
copies of any paper or document which has
been, or may be, filed by him in support of
the application.
10 All. Ayaz Ahmad & Ors. Vs. Civil Judge (Jn. Dv.), Sultanpur & Ors.
1033

(5) Where a caveat has been
lodged under sub-section (1), such caveat
shall not remain in force after the expiry of
ninety days from the date on which it was
lodged unless the application referred to in
sub-section (1) has been made before the
expiry of the said period."

10. Here is a case in which the
caveator has disclosed some right in the
land in dispute in caveat filed before the
concerned court. Even otherwise it can not
be said that the caveator is not required to
be heard if it is a government land. The
contention of learned counsel for the
petitioner that a private person can not file
a caveat in regard to government land is
misconceived and not tenable and failed to
show any rule or law. Even otherwise both
are claiming right on land in dispute on the
basis of possession. It is also not the case of
the petitioners that the caveat was not
served on the petitioners and it has not been
argued by the learned counsel for the
petitioners also, therefore once the caveat
was served on the petitioners, who have
filed the suit, it was their duty to serve a
copy of the suit on the counsel for the
caveator and then could have argued before
the trial court or this Court pointing out that
the caveator has been served. This Court is
of the view that there is no illegality or
error in the impugned order in issuing
notice to the caveator, if he was not served.

11. So far as the argument of learned
counsel for the petitioner in regard to Order-39,
Rule-3 is concerned, it is a discretion of the
Court concerned to see as to whether the
injunction is required to be granted without
issuing the notices or not but it does not provide
that the opportunity to the caveator would not
be given before hearing on the suit/ application,
who has a right of hearing under Section 148-A
C.P.C., therefore, contention of learned counsel
for the petitioners in this regard is also
misconceived and not tenable. Order-39, Rule-3
C.P.C. is extracted here-in-below:-

"Order- XXXIX, Rule-3. Before
granting injunction, Court to direct notice to
opposite party.

The Court shall in all case, except
where it appears that the object of granting the
injunction would be defeated by the delay,
before granting an injunction, direct notice of
the application for the same to be given to the
opposite party:

Provided that, where it is proposed
to grant an injunction without giving notice of
the application to the opposite party, the Court
shall record the reasons for its opinion that the
object of granting the injunction would be
defeated by delay, and require the applicant-

(a) to deliver to the opposite party, or
to send to him by registered post, immediately
after the order granting the injunction has been
made, a copy of the application for injunction
together with-

(i) a copy of the affidavit filed in
support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents on
which the applicant relies, and

(b) to file, on the day on which
such injunction is granted or on the day
immediately following that day, an affidavit
stating that the copies aforesaid have been
so delivered or sent."

12. In view of above, this Court is of
the view that the impugned order dated
20.09.2023 has rightly been passed in
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
accordance with law. There is no illegality
or error in it, which may call for any
interference by this Court. The contentions
raised by learned counsel for the petitioners
are not tenable which are hereby repelled.
The petition is misconceived and lacks
merit in regard to challenge to the
impugned order dated 20.09.2023 and it is
liable to be dismissed to that extent.

13. The other grounds as argued by
the learned counsel for the parties are
concerned, they may be argued before the
concerned court, who may consider the
same in accordance with law. This Court
does not express any opinion on the same.

14. At this stage, learned counsel for
the petitioners submits that the petitioner
has also moved an application under
Section 151 C.P.C. on 25.09.2023 for adinterim injunction but the same has not
been considered till date. On a query being
put as to why it has not been considered, he
submits that on account of strike of lawyers
no orders could be passed on the same,
therefore, the allegation for not considering
the application can not be levelled against
the court concerned.

15. Learned counsel for the petitioner,
at this stage, submits that the petition may
be disposed of with a direction to the
concerned court to consider the application
for
interim
injunction
filed
by
the
petitioners
after
hearing
the
parties
including the caveator. To which there is
no objection by the other side.

16. In view of above, this petition is
dismissed in regard to prayer for settingaside the order dated 20.09.2023 in
Original Suit No.723 of 2023 and disposed
of in regard to other prayers without
expressing any opinion thereon with liberty
to the petitioners to press their application
before the concerned court on the date
fixed and thereafter. However in case the
same could not be considered on the date
fixed and disposed of within a reasonable
period thereafter despite assistance by the
petitioners, they may move appropriate
application before the concerned court for
expeditious disposal of the applications,
which may be considered by the concerned
court in accordance with law and pass
appropriate orders thereon expeditiously
and proceed accordingly as per law. No
order as to costs.
----------
(2023) 10 ILRA 1034
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.10.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Matters Under Article 227 No. 6848 of
2023(Criminal)

Smt. Manorama Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Upendra Kumar Pushkar

Counsel for the Respondents:
G.A., Sri Kamlesh Kumar Dwivedi, Sri D.B.
Singh

A.
Criminal
Law-Constitution
of
India,1950-Article227
-
Indian
Penal
Code,1860-Sections 323, 506, 354(Kha) &
3(1)(da), 3(1)(dha), 3(2)(va) - SC/ST Act
1987-application moved by the victim for
recording the statement u/s 164 CrPC a
third
time,
the
I.O.
moved
another
application for the same purpose but it
was rejected by CJM-There is nothing in
law to prevent the I.O. from moving
application for recording the statement of