# Govardhan & Ors v. Smt. Jaldhara Devi Maha Vidyalaya, Hathras & Anr

- **Citation:** (2021) 1 ILRA 1038
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-08-27
- **Case number:** Matter Under Article 227 No. 3462 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/govardhan-ors-v-smt-jaldhara-devi-maha-vidyalaya-hathras-anr-46095
- **Pages:** 7

## Headnote

A. Civil Law - Jurisdiction under Article
227 - Constitution of India: Article 227;
Civil Procedure Code, 1908 - Order XXXIX
Rule 1 and 2, Order XXXIX Rule 1(r),
Order XLIII Rule 1(r); Uttar Pradesh
Zamindari Abolition and Land Reforms
Act, 1950: Section 143, 176/182 - The
order ought not be interfered with if it is
one that does substantial justice, and the
flaw even about jurisdiction is one merely
about the form of remedy. (Para 10)

An interim injunction granting prohibitory
relief to preserve the property in dispute
pending suit could be granted, where the
relief claimed is for mandatory injunction.
(Para 6)

An interim injunction is designed to act in
aid of the final relief and to eschew
pendente lite injury by the wrongful
action of one party against the other,
before their rights are determined. The
purpose of an interim injunction under Order
XXXIX Rule 1 and 2 of the Civil Procedure Code,
19082 is to preserve the property in dispute
pending suit, where the property is in danger of
being wasted, damaged or alienated by any
party to the suit, or where the defendants
threaten to dispossess the plaintiff, or otherwise
cause injury to the plaintiff, in relation to the
suit property. Rule 2 particularly postulates an
injunction to restrain repetition or continuation
of breach. (Para 7)

The purpose is to preserve the property in its
existing form and curtail as much mischief at an
interlocutory stage as can be, before rights of
parties to the property subject matter of the suit
are determined. There is, therefore, no warrant
to conclude that in a suit where the final relief is
a mandatory injunction, preventive relief by way
of temporary injunction cannot be granted. If
the Court finds that a prima facie case is made
out and the other two ingredients to grant a
temporary injunction established, it matters little
whether the final decree claimed in the suit is a
mandatory injunction alone with no prohibitory
injunction sought. In this view of the matter,
the impugned order passed by the Revisional
Court cannot be faulted. (Para 8)

B. Civil Procedure Code, 1908: Section 115
(as amended in its application to the State
of U.P.) - Power to revise an order of a
subordinate court - Essence of this Court's
jurisdiction under Article 227 of the
Constitution - It is true that the power to revise
an order of a subordinate court is available to a
superior court, where no appeal lies against that
order. The impugned order here is an order
rejecting a temporary injunction application and
that order is clearly appealable under Order XLIII
Rule 1(r) of the Code. Going by the provisions of
Section 115 of the Code, a revision against the
order passed by the Civil Judge would not lie to
any superior court, including the District Judge.

The impugned order made by the learned
Additional District Judge is f

## Text

1038 INDIAN LAW REPORTS ALLAHABAD SERIES
guided by the parameters set out in the
judgment of A. Venkatasubbiah Naidu
(supra) or in any other judgment on this
issue.

IV. While entertaining such appeal the
appellate court is bound to record reasons
for entertaining such appeal, and such
appeal must indicate the omission on the
part of the trial court to decide such
temporary injunction application finally, if
filed, by the plaintiff or omission on the
part of the trial court to decide an
application filed by the defendant for
vacating the interim order granted by the
trial court within the said time period of six
months (in the State of U.P.).

V. At the cost of repetition it may
further be clarified that in case the
temporary injunction application filed by
the plaintiff or any other party to the suit
interested in temporary injunction is not
decided within the time period of six
months in the State of U.P., he can file
misc. appeal under the provisions of Order
43 Rule (1) (r) CPC, which can be
entertained for the reasons recorded and in
case of non-consideration of disposal of the
stay vacation application filed by the
defendant or any other party to the suit, he
can also file misc. appeal under the
aforesaid provision, which can also be
considered for the reasons recorded as per
the parameters set out by the Courts.

VI. If any such misc. appeal is filed,
the same can be considered only on the
evidence already on record before the trial
court unless the additional evidence is
received by the appellate court under Order
41 Rule 27 CPC as per the law by
recording reasons. In other words, in such
misc. appeal the appellant cannot rely on
the evidence filed by him in the appellate
court without the same having not been
allowed by the misc. court under Order 41
Rule 27 CPC as per the law laid down by
the Hon'ble Full Bench in the case of Zila
Parishad, Budaun (supra).

39. Accordingly, for the discussions
made hereinabove, the impugned order
dated 27.8.2020 is hereby set aside.

40. At this stage, learned counsel for
the respondents submits that the court
below may be directed to decide interim
injunction application within time bound
period.

41. In the light of Circular dated
16.8.2017 as already noted above no
further direction is required for disposal of
interim injunction application.

42. It is expected that the Court below
shall follow the directions as noted above
in its letter and spirit provided the
functioning of the court is not affected due
to COVID-19 Pandemic.

43. Present petition stands allowed,
however, with the observations as made
above. No order as to costs.
----------

(2021)01ILR A1038
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Matter Under Article 227 No. 3462 of 2020

Govardhan & Ors. ...Petitioners
Versus
Smt.
Jaldhara
Devi
Maha
Vidyalaya,
Hathras & Anr. ...Respondents

Counsel for the Petitioners:
Sri Rakesh Kumar Mishra
1 All. Goverdhan & Ors. Vs. Smt. Jaldhara Devi Maha Vidyalaya, Hathras & Anr.
1039
Counsel for the Respondents:
-----

A. Civil Law - Jurisdiction under Article
227 - Constitution of India: Article 227;
Civil Procedure Code, 1908 - Order XXXIX
Rule 1 and 2, Order XXXIX Rule 1(r),
Order XLIII Rule 1(r); Uttar Pradesh
Zamindari Abolition and Land Reforms
Act, 1950: Section 143, 176/182 - The
order ought not be interfered with if it is
one that does substantial justice, and the
flaw even about jurisdiction is one merely
about the form of remedy. (Para 10)

An interim injunction granting prohibitory
relief to preserve the property in dispute
pending suit could be granted, where the
relief claimed is for mandatory injunction.
(Para 6)

An interim injunction is designed to act in
aid of the final relief and to eschew
pendente lite injury by the wrongful
action of one party against the other,
before their rights are determined. The
purpose of an interim injunction under Order
XXXIX Rule 1 and 2 of the Civil Procedure Code,
19082 is to preserve the property in dispute
pending suit, where the property is in danger of
being wasted, damaged or alienated by any
party to the suit, or where the defendants
threaten to dispossess the plaintiff, or otherwise
cause injury to the plaintiff, in relation to the
suit property. Rule 2 particularly postulates an
injunction to restrain repetition or continuation
of breach. (Para 7)

The purpose is to preserve the property in its
existing form and curtail as much mischief at an
interlocutory stage as can be, before rights of
parties to the property subject matter of the suit
are determined. There is, therefore, no warrant
to conclude that in a suit where the final relief is
a mandatory injunction, preventive relief by way
of temporary injunction cannot be granted. If
the Court finds that a prima facie case is made
out and the other two ingredients to grant a
temporary injunction established, it matters little
whether the final decree claimed in the suit is a
mandatory injunction alone with no prohibitory
injunction sought. In this view of the matter,
the impugned order passed by the Revisional
Court cannot be faulted. (Para 8)

B. Civil Procedure Code, 1908: Section 115
(as amended in its application to the State
of U.P.) - Power to revise an order of a
subordinate court - Essence of this Court's
jurisdiction under Article 227 of the
Constitution - It is true that the power to revise
an order of a subordinate court is available to a
superior court, where no appeal lies against that
order. The impugned order here is an order
rejecting a temporary injunction application and
that order is clearly appealable under Order XLIII
Rule 1(r) of the Code. Going by the provisions of
Section 115 of the Code, a revision against the
order passed by the Civil Judge would not lie to
any superior court, including the District Judge.

The impugned order made by the learned
Additional District Judge is flawless on merits,
may be passed in proceedings that were not
competent. He could have required the plaintiffs
to convert the revision into a miscellaneous
appeal under Order XLIII Rule 1(r) of the Code
and decided the same, may be, reaching the
same conclusions. It is the essence of this Court's
jurisdiction under Article 227 of the Constitution
that interference with orders of subordinate
courts and Tribunals is not to be made on
grounds of illegality or even patent illegality
alone. The order impugned should also be unjust
and iniquitous. Even if the plaintiffs were
compelled to choose the remedy of an appeal
under Order XLIII Rule 1(r) of the Code, it would
lie before the same forum. Had the wrong
remedy chosen made a difference in forum,
different principles would apply. (Para 10)

Writ Petition disposed off. (E-3)

Precedent followed:

1. Shiv Ram Singh, Appellant Vs Smt. Mangara
& ors,. Respondents 1988 All. L.J. 1516 (Para 6)

2. Meera Chauhan Vs Harsh Bishnoi & anr.,
(2007) 12 SCC 201 (Para 6)

Present petition assails the order dated
31.01.2020, passed by Additional Sessions
Judge, Hathras.
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble J.J. Munir, J.)

1. This petition under Article 227 of
the Constitution is directed against an order
dated
31.01.2020
passed
by
learned
Additional Sessions Judge, Court No. 5,
Hathras passed in Civil Revision No. 10 of
2016, allowing the said revision and setting
aside an order of the Civil Judge (Senior
Division), Hathras made in Original Suit
No. 715 of 2013, rejecting the temporary
injunction
application
made
by
the
plaintiff. The learned Additional Sessions
Judge has, by the impugned order, directed
parties to maintain status quo regarding the
property in dispute, pending suit.

2. Heard Mr. Rakesh Kumar Mishra,
learned counsel for the petitioners.

3. O.S. No. 715 of 2013 was filed by
the plaintiff-respondent nos. 1 and 2 against
the defendant-petitioner nos. 1 to 4, arrayed
as the defendants first set, and petitioner
no. 5 along with four other defendants,
arrayed as the defendants second set,
seeking a mandatory injunction to the
effect that defendant nos. 1 to 4 be ordered
to remove their constructions standing over
the suit property, denoted by letters 'A' 'B'
'C' 'D' in the plaint map and shown in red
colour, and further that they should, after
removal
of
the
illegal
constructions,
remove debris of the demolished building,
vacating the suit property within time, to be
specified by the court; and upon failure to
comply with the decree, the decree be
ordered to be carried into execution
through process of Court at the defendants'
expense.

4. A temporary injunction application
was made in the said suit, where it was
alleged that the defendants are attempting
to raise constructions over the suit property,
in addition to the existing ones, in respect
of which, a decree of mandatory injunction
has been claimed. The basis of the suit
appears to be that the plaintiffs are owners
in
possession
of
Khasra
No.
52/5,
admeasuring 0.5 hectares, situate in Kasba
Hasayan. This land was originally a part of
Khasra
No.
52,
admeasuring
1.405
hectares. Khasra No. 52 had a number of
co-sharers. A suit for partition was filed by
a co-sharer, being Suit No. 205 of 20102011, under Section 176/182 of the Uttar
Pradesh Zamindari Abolition and Land
Reforms Act, 19501. The suit was decreed,
where a preliminary decree was passed by
the Revenue Court, on 24.08.2011. A final
decree followed on 27.08.2011. In the final
decree, lots were drawn and Khasra No.
52/5 fell to the plaintiff's lot. It is land
bearing Khasra No. 52/5, admeasuring 0.55
hectares, which is the property in dispute.

5. After the Revenue Court passed a
final decree for partition and Khas
possession to be delivered to parties, an
application was made by the plaintiffpetitioner no. 2 Durga Prasad, seeking that
the land in dispute be declared an abadi
under Section 143 of the Act of 1950. This
application of the second petitioner's was
registered as Case No. 15 on the file of the
Sub-Divisional Magistrate concerned and
the land in dispute was declared an abadi.
Thus, the petitioners became owners in
possession of the abadi. About two years
ago, the plaintiffs established over the land
in dispute an educational institution known
as the Jaldhara Devi Inter College,
Hasayan, District - Hathras. It was claimed
that defendant nos. 1 to 4 to the suit, who
are in connivance with the defendant nos. 5
to 9, are land grabbers and intended to
usurp
the
property
in
dispute.
The
defendants first and second set are all
kinsmen. About an year anterior to the
1 All. Goverdhan & Ors. Vs. Smt. Jaldhara Devi Maha Vidyalaya, Hathras & Anr.
1041
institution of the suit, defendants first set,
in connivance with the defendants second
set, encroached upon a part of the property
in dispute, the encroachment being 103
meters in length, running from East to
West, and 4 meters in width, running from
North to South. They illegally and forcibly
constructed a pucca room and a kachcha
boundary wall around that room. It is to
remove the aforesaid encroachment that the
suit for mandatory injunction was brought.
Since the defendants intended to raise some
further constructions in order to consolidate
their possession and usurp a larger area of
the
plaintiffs'
land,
the
temporary
injunction application was made. The Trial
Court rejected the temporary injunction
application by an order dated 02.02.2016.
The Trial Court went by the reasoning that
the suit was one for mandatory injunction,
where the defendants were in possession,
wrongfully or rightfully. There was no
relief by way of permanent prohibitory
injunction,
seeking
to
raise
further
constructions
or
doing
further
encroachment. In the opinion of Trial
Court, in the absence of there being a
permanent injunction claimed by way of
prohibitory relief, the temporary injunction,
prohibitory in nature, could not be granted
in a suit where the relief sought was one for
mandatory injunction alone.

6. The plaintiffs went up in revision to
the learned District Judge, Hathras. The
revision was numbered on the file of the
learned Sessions Judge, Hathras as Civil
Revision No. 10 of 2016. It was assigned to
the learned Additional District Judge, Court
No. 5, Hathras. The revision came up for
determination before the learned Additional
Judge, Hathras on 31.01.2020. The learned
Additional Judge, Hathras by his jugdment
and order dated 31.01.2020, allowed the
revision and ordered both the parties to
maintain status quo regarding the property
in dispute, pending suit. The Revisional
Court held that it is yet to be determined
whether
constructions
raised
by
the
defendants are ones that encroach into
Khasra No. 52/5 on its southern side, or
located
in
Khasra
No.
50.
This
determination would have to await trial.
The learned Additional District Judge held,
however,
that
an
interim
injunction
granting prohibitory relief to preserve the
property in dispute pending suit could be
granted, where the relief claimed is for a
mandatory injunction. For the purpose, the
Revisional Court relied on the decision of
this Court in Shiv Ram Singh, Appellant
v.
Smt.
Mangara
&
Others,
Respondents2 and a decision of the
Supreme Court in Meera Chauhan v.
Harsh Bishnoi & Another3.

7. In the opinion of this Court, the
purpose of an interim injunction under
Order XXXIX Rule 1 and 2 of the Civil
Procedure Code, 19084 is to preserve the
property in dispute pending suit, where the
property is in danger of being wasted,
damaged or alienated by any party to the
suit, or where the defendants threaten to
dispossess the plaintiff, or otherwise cause
injury to the plaintiff, in relation to the suit
property. Rule 2 particularly postulates an
injunction
to
restrain
repetition
or
continuation of breach. Fundamentally, an
interim injunction is designed to act in aid
of the final relief and to eschew pendente
lite injury by the wrongful action of one
party against the other, before their rights
are determined. In this connection, the
provisions of Rule 1 and 2 of Order
XXXIX may be quoted with profit :

1. Cases in which temporary
injunction may be granted.- Where in any
Suit it is proved by affidavit or otherwise--
1042 INDIAN LAW REPORTS ALLAHABAD SERIES

(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 5[defrauding] his
creditors,

6[(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
7[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.

8. The Revisional Court, or for that
matter, the Trial Court, do not doubt the
fact that prima facie, the plaintiffs have title
to and possession of Khasra No. 52/5. The
dispute is whether on the southern
boundary, there is an encroachment by the
defendant-petitioners. The constructions
sought to be removed by mandatory
injunction are there, but the fact whether
these constructions have been raised by the
defendants in some part of Khasra No. 52/5
or in their own land, is yet to be
determined. In case, during this period of
time,
the
defendants
raise
further
constructions
there,
or
make
more
encroachment, it would complicate rights
of parties and also cause more injury to the
defendants, if at the hearing, it were found
that in fact, the defendants are trespassers
and have to be removed. Clause (c) of Rule
1 of Order XXXIX is designed to prevent
the defendant from dispossessing the
plaintiff or otherwise causing injury to the
plaintiff vis-à-vis the suit property, until
time that rights are determined. Rule 2
primarily relates to a remedy about
restraining the defendants from committing
a breach of contract or other injury of any
kind. Rule 2 may relate primarily to cases
of injuries flowing from breach of contract,
but the scope of Rule 1 is wide enough to
preserve immovable property in the state
that it exists pending hearing of the suit,
where a prima facie case is made out. The
purpose is to preserve the property in its
existing form and curtail as much mischief
at an interlocutory stage as can be, before
rights of parties to the property subject
matter of the suit are determined. There is,
therefore, no warrant to conclude that in a
suit where the final relief is a mandatory
injunction, preventive relief by way of
temporary injunction cannot be granted. If
the Court finds that a prima facie case is
made out and the other two ingredients to
grant a temporary injunction established, it
matters little whether the final decree
claimed in the suit is a mandatory
injunction alone with no prohibitory
injunction sought In this view of the matter,
1 All. Goverdhan & Ors. Vs. Smt. Jaldhara Devi Maha Vidyalaya, Hathras & Anr.
1043
the
impugned
order
passed
by
the
Revisional Court cannot be faulted.

9. It was argued by learned counsel for
the petitioners that an order disposing of a
temporary
injunction
application
is
appealable as an order, under Order XXXIX
Rule 1 (r) of the Code and that, therefore, a
revision would not lie. He has relied upon the
provisions of Section 115 of the Code, as
amended, in their application to the State of
U.P. vide Act No. 14 of 2003. Section 115 of
the Code (as amended in its application to the
State of U.P.) reads thus :

" 115. Revision.-(1) A superior court
may revise an order passed in a case decided
in an original suit or other proceeding by a
subordinate court where no appeal lies
against the order and where the subordinate
court has-

(a) exercised a jurisdiction not vested in
it by law; or

(b) failed to exercise a jurisdiction so
vested; or

(c) acted in exercise of its jurisdiction
illegally or with material irregularity.

(2) A revision application under subSection (1), when filed in High Court, shall
contain a certificate on the first page of such
application, below the title of the case, to the
effect that no revision in the case lies to the
district court but lies only to the High Court
either because of valuation or because the
order sought to be revised was passed by the
district court.

(3) The superior court shall not, under
this section, vary or reverse any order made
except where,-

(i) the order, if it had been made in
favour of the party applying for revision,
would have finally disposed of the suit or
other proceeding; or

(ii) the order, if allowed to stand, would
occasion a failure of justice or cause
irreparable injury to the party against whom it
is made.

(4) A revision shall not operate as a stay
of suit or other proceeding before the court
except where such suit or other proceeding is
stayed by the superior court.

Explanation I. - In this section,-

(i) the expression ''superior court'
means-

(a) the district court, where the valuation
of a case decided by a court subordinate to it
does not exceed five lakh rupees;

(b) the High Court, where the order
sought to be revised was passed in a case
decided by the district court or where the
value of the original suit or other other
proceedings in a case decided by a court
subordinate to the district court exceed five
lakh rupees;

(ii) the expression ''order' includes an
order deciding an issue in any original suit or
other proceedings.

Explanation II.-The provisions of this
section shall also be applicable to orders
passed, before or after the commencement
of this section, in original suits or other
proceedings
instituted
before
such
commencement. [Vide U.P. Act 14 of
20038, S.2] (emphasis by Court)

10. It is true that the power to revise
an order of a subordinate court is available
to a superior court, where no appeal lies
against that order. The impugned order here
is an order rejecting a temporary injunction
application and that order is clearly
appealable under Order XLIII Rule 1 (r) of
the Code. Going by the provisions of
Section 115 of the Code, a revision against
the order passed by the Civil Judge would
not lie to any superior court, including the
District Judge. In that view of the matter,
the learned Additional District Judge would
not have jurisdiction to entertain and decide
the
civil
revision,
where
the
order
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned has been passed. But that is not
the end of the matter in a case like the
present one. If this Court were to
technically
hold
the
revision
not
maintainable and set aside the impugned
order, the Court would, in fact, be restoring
an illegal order on the merits of the parties'
case. The impugned order made by the
learned
Additional
District
Judge
is
flawless on merits, may be passed in
proceedings that were not competent. He
could have required the plaintiffs to convert
the revision into a miscellaneous appeal
under Order XLIII Rule 1(r) of the Code
and decided the same, may be, reaching the
same conclusions. It is the essence of this
Court's jurisdiction under Article 227 of the
Constitution that interference with orders of
subordinate courts and Tribunals is not to
be made on grounds of illegality or even
patent illegality alone. The order impugned
should also be unjust and iniquitous. If the
order is one that does substantial justice,
and the flaw even about jurisdiction is one
merely about the form of remedy, in the
opinion of this Court, the order ought not
be interfered with. Even if the plaintiffs
were compelled to choose the remedy of an
appeal under Order XLIII Rule 1(r) of the
Code, it would lie before the same forum.
Had the wrong remedy chosen made a
difference in forum, different principles
would apply. But, this is not the case here.

11. In the circumstances, this Court
does not find the case to be one at all where
the order impugned ought to be interfered
with by this Court in exercise of its
jurisdiction under Article 227 of the
Constitution.

12. However, looking to the entirety
of the circumstances that the parties are in
strife, where there is apparently little
dispute
about
title,
but
one
over
demarcation of their properties, giving rise
to the cause of action involved, it would be
in the interest of justice that the Trial Court
may be required to expedite hearing and
endeavour to conclude the trial within a
period of eight months of the receipt of a
copy of this order, in accordance with law.

13. This petition stands disposed of in
terms of the aforesaid orders.

14. Let this order be communicated to
the learned Additional District Judge, Court
No. 5, Hathras through the learned District
Judge, Hathras by the Joint Registrar
(Compliance).
----------
(2021)01ILR A1044
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.11.2020

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Crl. Misc. Appl. u/s 482 No. 11058 of 2020

Vivek Jain ...Applicant
Versus
C.B.I., ACB Ghaziabad ...Opp. Party

Counsel for the Petitioner:
Sri Kuldeep Saxena, Sri Vijit Saxena

Counsel for the Respondents:
Sri Sanjay Kumar Yadav

Criminal Law-Section 17 of prevention of
Corruption Act-Investigation conducted in
execution and implementation of National
Rural Health Mission and utilisation of
funds-chargesheet
submitted
and
cognizance was taken-objection is raised
as investigation conducted by officer
below rank of Inspector of Police and is
violative of section 17 of P.C. Act -no
pleadings regarding any prejudice or
miscarriage of justice on account of such