# Darshan Singh & Ors v. Addl. Commissioner & Ors

- **Citation:** (2015) 3 ILRA 1096
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-16
- **Case number:** Misc. Single No. 5377 of 2015
- **Bench:** Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/darshan-singh-ors-v-addl-commissioner-ors-43364
- **Pages:** 7

## Headnote

Act-Section
341Applicability of provisions of Civil Procedure
code-partition
suit-whether
interim
injunction can be granted?-held-'yes' court
empowered either to grant or refuse
temporary injunction.
Held: Para-18
As such, I am of the considered view that
in the proceedings under Section 176 of
U.P.Z.A. & L.R. Act the Court concerned is
fully empowered to grant temporary
injunction/stay.
C.P.C.-Order XLIII Rule 1(r)-Partition suitrefusal or grant of interim order-Appeal
maintainable-dismissal of revision-saying
interlocutory order-held-illegal.
Held: Para-22
In view of above, it is held that an
appeal shall lie against an order granting
or refusing temporary injunction/stay in
the proceedings under Section 176 of
U.P.Z.A. & L.R. Act.
Case Law discussed:
[1999 (17) LCD-201]

## Text

1096
 INDIAN LAW REPORTS ALLAHABAD SERIES
was held entitled to eject the tenant, as the
tenancy of the petitioner was lawfully
terminated. In such view of the matter, this
Court does not find any illegality in the
interpretation regarding the scope and
extent of the decree made by the executing
court and the revisional court.
11.
The decision cited, would not
apply to the facts of the instant case, which
as noted above, are clearly distinguishable.
The specious argument made by the learned
counsel for the petitioner is, thus, not
acceptable. The petition lacks merit and is
dismissed.
12. In the end, learned counsel for
the petitioner prayed for reasonable time
being granted to vacate the demised
premises to which Sri Jokhan Prasad,
learned counsel appearing on behalf of the
decree holder has no objection.
13.
Accordingly, with consent of
parties, it is further provided that the
petitioner shall be permitted to remain in
possession of the demised premises until
31.12.2015,
provided
the
petitioner
furnishes an undertaking in form of an
affidavit before the executing court,
within three weeks from today, that he
will hand over peaceful vacant possession
of the demised premises to the decree
holder, without any let or hindrance on or
before 31.12.2015. Within the aforesaid
period, the petitioner shall also deposit the
entire arrears of rent and damages, as
decreed by the trial court. In case of
default in compliance of any of these
conditions, the decree shall become
executable forthwith.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.09.2015
BEFORE
THE HON'BLE RITU RAJ AWASTHI, J.
Misc. Single No. 5377 of 2015
Darshan Singh & Ors.
 ...Petitioner
Versus
Addl. Commissioner & Ors. ..Respondents
Counsel for the Petitioner:
Anil Kumar Mishra
Counsel for the Respondents:
C.S.C., Yogendra Nath Yadav
(A)
U.P.Z.A
&
L.R.
Act-Section
341Applicability of provisions of Civil Procedure
code-partition
suit-whether
interim
injunction can be granted?-held-'yes' court
empowered either to grant or refuse
temporary injunction.
Held: Para-18
As such, I am of the considered view that
in the proceedings under Section 176 of
U.P.Z.A. & L.R. Act the Court concerned is
fully empowered to grant temporary
injunction/stay.
C.P.C.-Order XLIII Rule 1(r)-Partition suitrefusal or grant of interim order-Appeal
maintainable-dismissal of revision-saying
interlocutory order-held-illegal.
Held: Para-22
In view of above, it is held that an
appeal shall lie against an order granting
or refusing temporary injunction/stay in
the proceedings under Section 176 of
U.P.Z.A. & L.R. Act.
Case Law discussed:
[1999 (17) LCD-201]
(Delivered by Hon'ble Ritu Raj Awasthi, J.)
1. Heard learned counsel for the
petitioners as well as learned Additional
Chief Standing Counsel Mr.M.E. Khan
and
perused
the
records.
3 All]
 Darshan Singh & Ors. Vs. Addl. Commissioner & Ors.
1097
2. Since the writ petition involves
purely legal questions of law which can
be considered without issuing notice to
private respondents and without calling
for any counter affidavit, the writ petition
is being decided at the admission stage
with the consent of parties counsel.
3. The questions which has cropped
up in this writ petition are (i) whether in
the proceedings under Section 176 of
U.P.Z.A. & L.R. Act the concerning court
is
competent
to
grant
temporary
injunction/stay and; (ii) whether the order
refusing or granting temporary injunction
is appellable or revisable.
4.
The instant writ petition has been
filed
challenging
the
order
dated
10.08.2015, passed by opposite party
no.2/Sub-Divisional Officer, Palia Kalan,
Lakhimpur Kheri as well as order dated
26.08.2015 whereby in the suit filed under
Section 176 U.P.Z.A. & L.R. Act by
petitioners the opposite party no.1 has come
to conclusion that there is no provision for
grant of stay in the proceedings under
Section 176 of U.P.Z.A. & L.R. Act. The
temporary injunction order dated 9.2.2015
was
therefore
vacated.
The
revision
preferred against the said order under
Section 333 of U.P.Z.A. & L.R. Act by the
petitioners has been dismissed as being not
maintainable.
5. The facts of the case in brevity are
that the land in dispute bearing Gata No.176
(Mi)/0.109, 184 (M.)/6.272, 197 (M.)/0.012,
174/0.348, 246/0.518 and 247/0.077 hectare
situated at Village Murur Khaida, Pargana
& Tehsil Palia Kalan, District Lakhimpur
Kheri were recorded in the name of Nahar
son of Hari Singh as tenure holder. After the
death of original tenure holder the land in
question was jointly recorded in the name of
petitioners along with opposite parties no.3
to 15 being legal heirs of original tenure
holder. As per petitioners opposite parties
had started interfering in the peaceful
possession of the petitioners, as such,
petitioners had filed a suit for partition
under Section 176 of U.P.Z.A. & L.R. Act
which is registered as Suit No.375 (Darshan
Singh and others Vs. Malkeet Singh and
others). The petitioners in the said suit had
filed an application dated 7.2.2015 for grant
of stay. The said application was allowed
vide order dated 9.2.2015 and the parties
were directed to maintain status-quo till
further orders in respect to the land in
dispute. The opposite parties no.7 to 11 had
filed an application dated 13.7.2015 for
vacation of stay order. On the said
application the opposite party no.2 vide
impugned order dated 10.8.2015 has
vacated stay order dated 9.2.2015. The
petitioners feeling aggrieved had filed
revision under Section 333 of U.P.Z.A. &
L.R. Act which has been dismissed holding
that the revision since has been filed against
an interlocutory order, as such is not
maintainable.
6.

Learned
counsel
for
the
petitioners submit that opposite party no.2
without
properly
considering
the
submissions made by the petitioners had
vacated the stay order dated 9.2.2015. It is
wrong to say that in the proceedings
under Section 176 of U.P.Z.A. & L.R. Act
the concerning Court does not posses the
power of granting stay.
7. Submission is that under Section
341 of of U.P.Z.A. & L.R. Act the
applicability of Code of Civil Procedure
has been made, as such, once a suit is
filed the concerning Court is fully
empowered
to
grant
ad-interim
injunction/stay.
1098
 INDIAN LAW REPORTS ALLAHABAD SERIES
8. It is further submitted that since
there is no specific provision of appeal in
such proceedings, as such, in view of
Section 333 of U.P.Z.A. & L.R. Act an
order passed in the proceedings where no
appeal lies or where an appeal lies but has
not been preferred the revision is
maintainable.
9.

Mr.
M.E.
Khan,
learned
Additional Chief Standing Counsel, on
the other hand, submits that under Section
341 of U.P.Z.A. & L.R. Act it has been
specifically provided that provisions of
Indian Court Feel Act, Code of Civil
Procedure, 1908 and Limitation Act shall
apply to the proceedings of this Act
except expressly barred.
10. As such, in the proceedings
under Section 176 of U.P.Z.A. & L.R. Act
the procedure prescribed in Code of Civil
Procedure shall be fully applicable. Under
Order XLIII Rule 1 of C.P.C. an appeal
shall lie from an order passed in the
proceedings under Order XXXIX Rules 1
and 2 C.P.C. Order XXXIX Rules 1 and 2
C.P.C. empowers the Court to grant
temporary injunction. As such, the Court
dealing with the proceedings under
Section 176 of U.P.Z.A. & L.R. Act shall
be
empowered
to
grant
ad-interim
injunction/stay and any order passed in
this regard is appellable. In support of his
submissions he has relied on a Division
Bench judgment of this Court in the case
of Smt. Urmila Devi Vs. Pooran Chand
Dabar and others, [1999 (17) LCD-201]
wherein the Court has come to conclusion
that in a suit for partition the Court can
grant temporary injunction.
11.

I
have
considered
the
submissions made by parties' counsel and
gone through the records.
12. So far as the question as to
whether the concerning competent Court
dealing with the proceedings under
Section 176 of U.P.Z.A. & L.R. Act is
empowered
to
grant
temporary
injunction/stay is concerned, it is to be
noted that Section 341 of U.P.Z.A. & L.R.
Act clearly provides that unless otherwise
expressly provided by or under this Act
provisions of Code of Civil Procedure,
1908 would be fully applicable.
13. Section 341 of U.P.Z.A. & L.R.
Act on reproduction reads as under:-
"341. Application of certain Acts to
the
proceeding
of
this
Act.-Unless
otherwise expressly provided by or under
this Act, the provisions of the Indian
Court Fees Act, 1870 (VII of 1870), the
Code of Civil Procedure, 1908 (V of
1908), and the [Limitation Act, 1963
(XXXVI of 1963)] [including Section 5
thereof] shall apply to the proceedings
under this Act.
1. Purpose of.-Section 341 of the
U.P.Z.A. and L.R. Act makes applicable
the provisions of the Code of Civil
Procedure to the proceedings under the
U.P.Z.A. and L.R. Act unless otherwise
expressly provided by or under the Act. If
a different procedure is contemplated
under the U.P.Z.A. and L.R. Rules, the
procedure under the CPC would not be
applicable.
Section 341 of the U.P.Z.A. and L.R.
Act makes applicable the provisions of the
Civil Procedure Code also to the second
appeals in the Board of Revenue. The
substantial
questions
of
law
have,
therefore, also to be framed by the Board
of Revenue.
2. Application of provisions of CPC.-
Section 341 of the U.P.Z.A. and L.R. Act
applies the provisions of the CPC to
3 All]
 Darshan Singh & Ors. Vs. Addl. Commissioner & Ors.
1099
proceedings under the U.P.Z.A. and L.R.
Act unless otherwise expressly provided.
The Z.A. Act has made provisions for
suits, appeals, second appeals revisions
etc. The IPC thus has been made
applicable to them unless otherwise
expressly provided.
3. Second appeal.- By virtue of
Section 341 of the U.P.Z.A. and L.R. Act,
the provisions of the Code of Civil
Procedure are applicable to second
appeals under the U.P.Z.A. and L.R. Act."
14. Section 176 of U.P.Z.A. & L.R.
Act
does
not
expressly
bar
the
applicability of the Code of Civil
Procedure. As such, it can be easily
concluded that the provisions of the Code
of Civil Procedure are fully applicable in
the proceedings under Section 176 of
U.P.Z.A. & L.R. Act.
15. Order XXXIX of C.P.C. deals with
temporary
injunction
and
interlocutory
orders. Order XXXIX Rule 1 of C.P.C.
relates to the case in which temporary
injunction may be granted whereas subSection (2) deals with injunction to restrain
repetition or continuance of breach.
16.
Order XXXIX Rules 1 and 2 of
C.P.C. provides that wherein any suit it is
proved by affidavit or otherwise that any
property in dispute in a suit is in danger of
being wasted, damaged or alienated by any
party to the suit, or wrongfully sold in
execution of a decree or the defendant
threatens or intends to remove or dispose of
his property which may cause injury to the
plaintiff, the Court may by order grant a
temporary injunction to restrain such act.
17. Order XXXIX Rules 1 and 2
C.P.C. for convenience are reproduced
hereinbelow:-
"1. Cases in which temporary
injunction may be granted.- Where in any
Suit it is proved by affidavit or otherwise?
(a) that any property in dispute in a
suit is in danger of being wasted,
damaged or alienated by any party to the
suit, or wrongfully sold in execution of a
decree, or
(b) that the defendant threatens, or
intends, to remove or dispose of his
property with a view to defrauding his
creditors,
(c) that the defendant threatens to
dispossess the plaintiff or otherwise cause
injury to the plaintiff in relation to any
property in dispute in the suit,the court may
by Order grant a temporary injunction to
restrain such act, or make such other Order
for the purpose of staying and preventing
the wasting, damaging, alienation, sale,
removal or disposition of the property or
dispossession of the plaintiff, or otherwise
causing injury to the plaintiff in relation to
any property in dispute in the suit] as the
court thinks fit, until the disposal of the suit
or until further orders.
2. Injunction to restrain repetition or
continuance of breach.- (1) In any suit for
restraining the defendant from committing a
breach of contract or other injury of any kind,
whether compensation is claimed in the suit
or not, the plaintiff may, at any time after the
commencement of the suit, and either before
or after judgment, apply to the court for a
temporary
injunction
to
restrain
the
defendant from committing the breach of
contract or injury complained of, or any
breach of contract or injury of a like kind
arising out of the same contract or relating to
the same property or right.
(2) The court may by Order grant
such injunction, on such terms, as to the
duration of the injunction, keeping an
account, giving security, or otherwise, as
the court thinks fit."
1100
 INDIAN LAW REPORTS ALLAHABAD SERIES
18.
As such, I am of the considered
view that in the proceedings under Section
176 of U.P.Z.A. & L.R. Act the Court
concerned is fully empowered to grant
temporary injunction/stay.
19. So far as the question as to whether
the order granting or refusing the interim stay in
the proceedings under Section 176 of U.P.Z.A.
& L.R. Act is concerned, it is to be noted that
the order XLIII Rule 1 C.P.C. deals with the
orders which are appeallable. Order XLIII Rule
1 (r) C.P.C. provides that an appeal shall lie
from an order under Rule 1, Rule 2, Rule 2-A,
Rule 4 or Rule 10 of Order XXXIX.
20. Order XLIII of C.P.C. on
reproduction reads as under:-
"1. Appeals from orders.- An appeal
shall lie from the following orders under
the provisions of section 104, namely:?
(a) an order under rule 10 of Order
VII returning a plaint to be presented to
the proper court except where the
procedure specified in rule 10A of Order
VII has been followed;
(b) Omitted by Act 104 of 1976,
w.e.f. 1-2-1977
(c) an order under rule 9 of Order IX
rejecting an appiication (in a case open to
appeal) for an order to set aside the
dismissal of a Suit;
(d) an order under rule 13 of Order
IX rejecting an application (in a case
open to appeal) for an Order to set aside
a decree passed e parte;
(e) [* * *]
(f) an order under rule 21 of Order
XI;
(g) [* * *]
(h) [* * *]
(i) an order under rule 34 of order
XXI on an objection to the draft of a
document or of an endorsement;
(j) an order under rule 72 or rule 92
of Order XXI setting aside or refusing to
set aside a sale;
(ja) an order rejecting an application
made under sub-rule (1) of rule 106 of
order XXI, provided that an order on the
original application, that is to say, the
application referred to in sub-rule (1) of
rule 105 of that order is appealable;
(k) an order under rule 9 of Order
XXII refusing to set aside the abatement
or dismissal of a suit;
(I) an order under rule 10 of Order
XXII giving or refusing to give leave;
(m) [* * *]
(n) an order under rule 2 of Order
XXV rejecting an application (in a case
open to appeal) for an order to set aside
the dismissal of a suit;
(na) an order under rule 5 or rule 7
or Order XXXIII rejecting an application
for permission to sue as an indigent
person;
(o) [* * *]
(p) order in interpleader suits under
rule 3, rule 4 or rule 6 of Order XXXV;
(q) an order under Rule 2, Rule 3 or
Rule 6 of Order XXXVIII;
(r) an order under Rule 1, Rule 2,
Rule 2A Rule 4 or Rule 10 of Order
XXXIX;
(s) an order under Rule 1 or Rule 4
of Order XL;
(t) an order of refusal under Rule 19
of Order XLI to re-admit, or under Rule
21 of Order XLI to re-hear, an appeal;
(u) an order under Rule 23 or Rule
23A or Order XLI remanding a case,
where an appeal would lie from the
decree of the Appellate Court;
(v) Omitted by Act 104 of 1976, w.e.f.
1-2-1977
(w) an order under Rule 4 of Order
XLVII
granting
an
application
for
review."
3 All]
 Darshan Singh & Ors. Vs. Addl. Commissioner & Ors.
1101
21. As such, it is very much clear
that an appeal shall be filed against an
order passed in exercise of powers under
Rule 1, Rule 2, Rule 2-A, Rule 4 or Rule
10 of Order XXXIX.
22. In view of above, it is held that
an appeal shall lie against an order
granting
or
refusing
temporary
injunction/stay in the proceedings under
Section 176 of U.P.Z.A. & L.R. Act.
23. It is also to be noted that the
appeal shall lie before the authority as
provided under Schedule II which is to be
read with Section 331 of U.P.Z.A. & L.R.
Act. As such, an appeal shall lie before
the Commissioner concerned in such
circumstances.
24.
This Court in the case of Smt.
Urmila Devi Vs. Pooran Chand Dabar and
others (supra) has held that in the
proceedings with respect to Section 176 of
U.P.Z.A. & L.R. Act the provisions of Code
of Civil Procedure would be applicable
including Order XXXIX C.P.C. The relevant
paragraphs 7 and 8 of the judgment on
reproduction reads as under:-
"7. The learned counsel for appellant
contended that in a suit for division of
holding, no injunction can be issued under
Order 39 of Code of Civil Procedure in
respect of grant of temporary injunction.
We are not inclined to accept the said
contention in view of Section 341 of the Act,
which reads as follows :
"341. Application of certain Acts to
the proceedings of this Act.-- Unless
otherwise expressly provided by or under
this Act, the provisions of the Indian
Court Fees Act, 1870 (VII of 1870), the
Code of Civil Procedure, 1908 (V of
1908), and the [Limitation Act. 1963
(XXXVI of 1963)], [Including Section 5
thereof] shall apply to the proceedings
under this Act."
As there is no express provision by or
under the Act providing for exclusion of Order
39 of Code of Civil Procedure in respect of
grant of temporary injunction during pendency
of a suit, the said provision is applicable to a
suit for division of holding and the Court in
which suit under Section 176 of Code of Civil
Procedure is pending could have given the
relief to the appellant which is being sought in
present proceedings. At one stage, the learned
counsel for appellant tried to argue that as
Section 229-D of the Act provides for grant of
temporary injunction only in respect of suit for
declaration filed under Sections 229-B and
229-C, the provisions of Order 39 of Code of
Civil Procedure for temporary injunction
impliedly extends excluded. We are not inclined
to accept the said contention. The provision
under Section 229-D is only supplemental to
Order 39 which permits grant of temporary
injunction. By incorporating Section 229-D, a
temporary Injunction can be granted in a suit
for
declaration
though
no
permanent
injunction is being sought which would not
have been possible ha'a the specific provision
been not there. Thus, the argument that Order
39 of Code of Civil Procedure stands excluded
in view of Section 229-D of the Act is
unacceptable to us.
8. It is argued by learned counsel for
the plaintiff/appellant that there was no
Justification for the Court to vacate the
interim Injunction which was continuing
from 28.4.1998 as an appeal was
preferred
which
was
dismissed
as
withdrawn and order of Court below
stood merged in it. The contention has no
force. Order 39, Rule 4 of Code of Civil
Procedure comes into play in case
conditions mentioned therein come into
existence. The power of a trial court to
vacate its earlier order passed under Order
1102
 INDIAN LAW REPORTS ALLAHABAD SERIES
39, Rule 2 does not come to an end merely
because an appeal against it stands dismissed.
It is in different circumstances that the power
is to be exercised and if conditions mentioned
therein arise, the Court can vacate a
temporary injunction granted by it. even if it
has been subject-matter of appeal provided it
is satisfied that the conditions are such that Us
continuance is not possible and It is giving
rise to undue hardship to party. In the instant
case, the shares of Smt. Urmila Devl and Smt.
Kanak Lata are admittedly 1/2 each. Smt.
Kanak Lata has transferred a specific portion
(western portion) to respondent Nos. 1, 2 and
3. If it is assumed for the sake of argument
that Smt. Kanak Lata could not have
transferred any particular portion of land yet
1/2 share of Smt. Kanak Lata has certainly
passed to the vendees. It makes no difference
if the half share is specified by area. The
parties can always get the land partitioned
and under the circumstances of this case,
when preliminary decree for division of
holding has already been passed, the parties
should get the land partitioned by metes and
bounds."
25. In view of above, the order
impugned dated 10.8.2015, passed by
opposite party no.2 is not sustainable in the
eyes of law. It is hereby set aside. Since this
Court has held that against the order dated
10.8.2015 the appeal shall lie before the
Commissioner, as such, the proceedings under
Section 333 of of U.P.Z.A. & L.R. Act by the
petitioners were nullity in the eyes of law.
26. The writ petition, as such, stands
allowed. The opposite party no.2 shall
consider and pass appropriate orders on the
application for stay as well as on application
for vacation of stay moved by the
petitioners and opposite parties respectively.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.09.2015
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.
Jail Appeal No. 7742 of 2009
Durga Singh
 ...Appellant
Versus
State
...Respondent
Counsel for the Appellant:
Smt. Kavita Tomar, Amicus Curiae
Counsel for the Respondents:
A.G.A.
Scheduled
Caste
&
Scheduled
Tribes
(Prevention of Atrocities) Act 1989-Section
3(2)(iv)-Conviction without considering the
aspect-fire was put on consequent to
enmity of civil litigation and not for being
sc/st-held-conviction-not sustainable.
Held: Para-16
On the basis of above discussion it is
explicitly clear that charged offence of
mischief by fire had not been committed
because victim was a member of SC/ST
community. This offence appears to have
been committed only because of dispute of
title and possession of land over which
victim's house is standing. In such a case
offence punishable under section 3(2)(iv) of
Scheduled Castes or Schedule Tribes Act is
not been committed. Therefore the finding
of of trial Court holding the appellant guilty
for the offence under SC/ST Act is
erroneous and is liable to be set aside.
Cr.P.C.-Section 235-Offence u/s 436 and
3(2)(iv) SC/ST Act-conviction by Trail Court
without opportunity to hear the accusedmainly on offence of sc/st Act-while no case
under SC/ST made out-conviction reduced.
Held: Para-19
In present case after the verdict of
conviction the accused-appellant had, at