# M.S. Fernandes v. E.J. De Sequeria A.I.R - **Citation:** (2012) 3 ILRA 1356 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2012-10-18 - **Case number:** Civil Misc. Writ Petition No. 53351 of 2012 - **Bench:** Sibghat Ullah Khan - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-fernandes-v-e-j-de-sequeria-a-i-r-42408 - **Pages:** 2 ## Headnote C.S.C. Sri Vinod Kumar Sharma Sri Vivek Varma Sri R.N.Ojha Sri O.P.Ojha Constitution Of India Art.-226-M.G. Vidyapeeth Ordinance-Chapter XIII Para 4A(9)- Election of Student uniondisqualification-to participate in election-on ground charge sheet for offence under Section 323,504,506 IPC filed against petitioner-held such union is nursery for future politics-permitting such person with criminal background would frustrate the purpose of reports of Lingdoh Committee-contesting election merely a legal and not the fundamental right-held can not be allowed to contest. Held: Para-10 Apart from this, it has already been held in the judgment delivered by this Court in the case of Vishal Yadav (supra) that contesting elections is only a legal right and not a fundamental right. In the aforesaid circumstances, the restrictions, which have been placed by virtue of the said Ordinances, are perfectly saved under the circumstances and they do not ## Text 1356 INDIAN LAW REPORTS ALLAHABAD SERIES [2012 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 18.10.2012 BEFORE THE HON'BLE SIBGHAT ULLAH KHAN, J. Civil Misc. Writ Petition No. 53351 of 2012 Mohd. Firoj ...Petitioner Versus Ataullah ...Respondents Counsel for the Petitioner: Sri Ashok Kumar Mishra Sri Rakesh Chandra Tiwari Counsel for the Respondents: ............................................ Constitution of India-Article 226-suit for permanent injunction-temporary injunction rejected by T/C-reversed by Lower Appellate Court-in present facts of case when pliantiff was in possessionentitled for interim injunction-order passed by Appellate Court modified by restraining both parties from transferring any part of land-T/C to decide suit on its merit without being prejudice with observation of Appellate Court-on event plaintiff's possession found without titlewould be disposed without any further suit by defendant-petition disposed of. Held: Para-5 It is further directed that in view of Supreme Court authority reported in Maria M.S. Fernandes vs. E.J. De Sequeria A.I.R. 2012 S.C. 1727 (paragraphs 82 and 83) in case in the suit in question it is found that plaintiff has got no title then defendant will not be required to file a separate suit for dis-possession of the plaintiff and in execution of such decree in this very suit plaintiff would be liable to be dispossessed. Case Law discussed: A.I.R. 2012 S.C. 1727 (paragraph 82 and 83) (Delivered by Hon'ble Sibghat Ullah Khan, J.) 1. Respondent has filed Original suit no.115 of 2010 against the petitioner. Alongwith the plaint application for temporary injunction was filed by the plaintiff. Civil Judge (Senior Division), Sonebhadra refused to grant temporary injunction to the plaintiff respondent through order dated 27.9.2010. Against the said order plaintiff-respondent filed Misc. Civil Appeal No.33 of 2010. Appeal has been allowed through order dated 13.7.2012 by District Judge, Sonebhadra. The said order has been challenged through this writ petition. 2. Learned counsel for the petitioner states that plaintiff was permitted to reside in a part of the accommodation in dispute by the defendant only as a licencee as he was relation of defendant-petitioner's ancestors. The lower appellate court has directed that plaintiff shall not be evicted during pendency of the suit from the portion shown to be in his possession in the Amin's report and petitioner defendant has been restrained from selling any part of plot nos. 1173 and 1174. 3. In my opinion as plaintiff was in possession hence at least he was entitled to the temporary injunction against forcible eviction. Accordingly, I do not find any error in the said part of the order. However, as far as question of restraining the defendant from selling any part of plot no.1173 and 1174 is concerned, the lower appellate court should have restrained both the parties. Accordingly, that part of the order 3 All] Sudhir Ojha V. State of U.P. & others 1357 passed by the lower appellate court is modified and it is directed that both the parties are restrained from transferring any part of plot nos. 1173 and 1174 during the pendency of the suit. This direction is being issued without issuing any notice to the respondent. If he feels aggrieved by it he is at liberty to apply for its recall. 4. Learned counsel for the petitioner has expressed apprehension that the findings recorded in the order dated 13.7.2012 by the District Judge may jeopardise his case in the suit. It is clarified that while deciding the suit trial court shall not take into consideration the findings recorded in the impugned order by the lower appellate court. 5. It is further directed that in view of Supreme Court authority reported in Maria M.S. Fernandes vs. E.J. De Sequeria A.I.R. 2012 S.C. 1727 (paragraphs 82 and 83) in case in the suit in question it is found that plaintiff has got no title then defendant will not be required to file a separate suit for dispossession of the plaintiff and in execution of such decree in this very suit plaintiff would be liable to be dispossessed. 6. Writ petition is accordingly disposed of. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 10.10.2012 BEFORE THE HON'BLE A.P.SAHI, J. Civil Misc. Writ Petition No. 53613 Of 2012 Sudhir Ojha ....Applicant Versus State of U.P. & Others .Respondents Counsel for the Petitioner: Sri H.N. Singh Sri I.K. Upadhyaya Sri Vineet Kumar Singh Counsel for the Respondents: C.S.C. Sri Vinod Kumar Sharma Sri Vivek Varma Sri R.N.Ojha Sri O.P.Ojha Constitution Of India Art.-226-M.G. Vidyapeeth Ordinance-Chapter XIII Para 4A(9)- Election of Student uniondisqualification-to participate in election-on ground charge sheet for offence under Section 323,504,506 IPC filed against petitioner-held such union is nursery for future politics-permitting such person with criminal background would frustrate the purpose of reports of Lingdoh Committee-contesting election merely a legal and not the fundamental right-held can not be allowed to contest. Held: Para-10 Apart from this, it has already been held in the judgment delivered by this Court in the case of Vishal Yadav (supra) that contesting elections is only a legal right and not a fundamental right. In the aforesaid circumstances, the restrictions, which have been placed by virtue of the said Ordinances, are perfectly saved under the circumstances and they do not