# Mahendra Singh & Ors v. State of U.P. & Ors

- **Citation:** (2022) 7 ILRA 417
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-24
- **Case number:** Writ-B No. 368 of 2022
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-singh-ors-v-state-of-u-p-ors-48894
- **Pages:** 12

## Headnote

A. Revenue Law - U.P. Revenue Code,
2006-Sections
144,
146
&
210
-
Petitioners instituted a suit for declaration
and also moved an application seeking
temporary injunction-the said temporary
injunction application was rejected by
trial court which was challenged before
the Board of Revenue which was also
dismissed at the stage of admission-an
order passed upon an application seeking
temporary injunction u/s 146 of the
Revenue Code during the course of a suit
u/s 144 or 145 would be amenable to a
first appeal u/s 207, and would not be
revisable under Section 210-Thus the
418 INDIAN LAW REPORTS ALLAHABAD SERIES
order passed by the Board of revenue
rejecting the revision at the stage of
admissibility is not illegal.(Para 1 to 46)

B. The temporary injunction which was
sought under Section 146 during the
pendency of the suit u/s 144 was as per
terms of the provisions under Order XXXIX
Rule 1 CPC and the said order being
referable to sub-rule(r) under Rule 1 of
Order XLIII, the same would be of the
nature specified under clause(b) and
clause (c) of sub-section (2) of Section
207 and in view thereof a first appeal
under Section 207 would lie against the
said order.(Para 39)

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

7 All. Mahendra Singh & Ors. Vs. State of U.P. & Ors.
417
approbated and reprobated at the same time
as on one hand it seeks to become a lessee
while being put in possession for enjoying
the immovable assets of Corporate Debtor
but on the other hand it wriggles and resiles
from the contractual obligation.

(d). The words so employed in the
Certificate of Sale Deed dated 11.09.2019
being "AS IS WHERE IS", "AS IS WHAT
IS", "WHATEVER THERE IS" AND "NO
RECOURSE" read with the Transfer
Memorandum
dated
24.12.2020
so
executed between the petitioner (auction
purchaser) and GNIDA as well as the Sale
Certificate dated 30.07.2021 itself creates
contractual obligation upon the petitioner to
honor the commitments and to discharge
the obligations so embodied in the lease
deed dated 26.06.2021 and the subsequent
lease deeds for the payment of past lease
rentals and interest thereon.

(e). GNIDA being the principal lessor
has paramount interest over the demised
land put to auction and it has legal as well
as contractual right to raise demand of out
standing arrears of lease rentals and interest
thereon.

(f). High Court under Article 226 of
the Constitution of India cannot by a
judicial fiat creates a podium to facilitate
avoidance of agreements while wriggling
out
from
contractual
obligations
so
embodied therein.

(g). A writ petition containing solitary
relief of refund of the amount deposited for
fulfilling contractual obligation, is not
maintainable.

(h). Even otherwise, in absence of any
challenge being made to the covenants of
the
Transfer
Memorandum
dated
24.12.2020 and the Sale Certificate dated
30.07.2021, the petitioner is not entitled to
refund of the amount so deposited by him
claiming it to be under protest.
CONCLUSION

87. In view of the forgoing
discussions, the writ petition is devoid of
merit and thus, liable to be dismissed. It is,
therefore, dismissed.

88. All pending applications stands
disposed of.

89. Interim order, if any, stands
vacated.

90. No order as to costs.
----------
(2022)07ILR A417
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2022

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ-B No. 368 of 2022

Mahendra Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Harsh Vikram, Sri Dharm Vir Jaiswal

Counsel for the Respondents:
C.S.C., Sri Arun Kumar Pandey

A. Revenue Law - U.P. Revenue Code,
2006-Sections
144,
146
&
210
-
Petitioners instituted a suit for declaration
and also moved an application seeking
temporary injunction-the said temporary
injunction application was rejected by
trial court which was challenged before
the Board of Revenue which was also
dismissed at the stage of admission-an
order passed upon an application seeking
temporary injunction u/s 146 of the
Revenue Code during the course of a suit
u/s 144 or 145 would be amenable to a
first appeal u/s 207, and would not be
revisable under Section 210-Thus the
418 INDIAN LAW REPORTS ALLAHABAD SERIES
order passed by the Board of revenue
rejecting the revision at the stage of
admissibility is not illegal.(Para 1 to 46)

B. The temporary injunction which was
sought under Section 146 during the
pendency of the suit u/s 144 was as per
terms of the provisions under Order XXXIX
Rule 1 CPC and the said order being
referable to sub-rule(r) under Rule 1 of
Order XLIII, the same would be of the
nature specified under clause(b) and
clause (c) of sub-section (2) of Section
207 and in view thereof a first appeal
under Section 207 would lie against the
said order.(Para 39)

The writ petition is dismissed. (E-6)

List of Cases cited:

1.
Talib
Khan
Vs
Addl.
Commr.(Admin.)
Moradabad DiVs, Moradabad (2008) 104 RD 458

2. Mulraj Vs Murti Raghonathji Maharaj (1967)
AIR SC 1386

3. Jean Marc Nken, Petitioner, Vs Eric H. Holder,
Jr. Attorney General (2009) 556 U.S. 418

4. Weinberger Vs Romero-Barcelo (1982) 456
U.S. 305, 312
(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Harsh Vikram, learned
counsel for the petitioners, Sri Neeraj
Tripathi,
learned Additional Advocate
General assisted by Sri Shashank Shekhar
Singh, learned Additional Chief Standing
Counsel and Sri Surya Bhan Singh and Sri
Devesh Vikram, learned Standing Counsel
appearing for the State respondents.

2. The instant writ petition has been
filed praying for quashing of the order
dated 23.09.2021 passed by the court of
Additional
Sub-Divisional
Magistrate
Sadar, Moradabad in Case No. 04080 of
2018,
Computerized
Case
No.
T201813540104080 (Mahendra Singh and
others Vs. State of U.P.) in proceedings
under Section 144 of the U.P. Revenue
Code,
20061
and
the
order
dated
23.11.2021 passed by the Member Board of
Revenue, U.P. Allahabad in Case No.
Rev/2396/2021/Moradabad, Computerized
Case No. AL20211354002396 (Mahendra
Singh and others Vs. Smt.Sharda Devi and
others) in proceedings under Section 210 of
the Revenue Code. A further direction is
sought to the private respondent nos. 3 to 8
not to interfere in the peaceful possession
of the petitioners on land bearing Gata No.
251Aa situate at Bhaypur Tehsil and
District Moradabad.

3. The case as set up in the writ
petition is that the land bearing Gata No.
521 Ka area 3.2380 acre situate at village
Bhaypur Tehsil and District Moradabad
was allotted to the predecessors-in-interest
of the petitioners; however due to mistake
of revenue authorities, their names were
wrongly recorded as class III tenure holder
and treating them to be asami, proceedings
under Rule 176-A (2) of the U.P. Zamindari
Abolition and Land Reforms Rules, 19522
were initiated and an exparte order dated
07.03.2003 was passed directing their
names to be expunged from the revenue
records. The land in question was thereafter
allotted to the respondent nos. 3 to 8. Upon
an application filed by the petitioners, the
aforestated order was recalled by an order
dated 04.12.2003 and the proceedings were
thereafter dropped with the passing of an
order dated 23.03.2006 under Rule 176-A
(2). The order dated 23.03.2006 was put to
challenge by the subsequent allottees as
also the State of U.P. by filing a revision
before
the
Additional
Commissioner
(Administration), Moradabad and in terms
of an order dated 31.03.2010, the revisions
7 All. Mahendra Singh & Ors. Vs. State of U.P. & Ors.
419
were
allowed
and
the
order
dated
23.03.2006 was set aside. The earlier order
dated 07.03.2003, whereby the names of
the
predecessors-in-interest
of
the
petitioners
had
been
expunged,
was
affirmed.
The
petitioners
thereafter
preferred a revision before the Board of
Revenue being Revision No. 13 of 20102011, which is stated to be pending.

4. It is further stated that the
predecessors-in-interest of the petitioners
died in the meantime and the petitioners
thereafter instituted a suit for declaration
under Section 144 of the Revenue Code
and also moved an application seeking
temporary
injunction
against
the
respondents under Section 146 of the
Revenue Code. The aforestated application
seeking temporary injunction was rejected
by the trial court by means of an order
dated 23.09.2021, which was subjected to
challenge in a revision being Revision No.
2396 of 2021 before the Board of Revenue,
which was also dismissed at the stage of
admission.
Aggrieved
against
the
aforestated order, the present writ petition
has been filed.

5. Learned counsel for the petitioners has
made his submissions as under :-

5.1 The revisional court erred in
dismissing the revision on the ground of
maintainability. The provision for grant of
injunction having been separately provided
for under Section 146 of the Revenue Code
any order passed thereon disposing the
application, either by granting or refusing
to grant the injunction, would have the
effect of terminating the proceedings under
Section 146 and therefore the order would
be revisable.

5.2 Section 209 creates a bar in respect
of certain appeals and in terms of clause (d)
thereof, an appeal is barred against an order
granting or rejecting an application for stay.

5.3 Section 210 provides for a revision
before the Board or the Commissioner in
respect of any suit or proceeding decided
by any subordinate revenue court in which
no appeal lies. In the instant case, the
application for injunction filed under
Section 146 having been finally decided
and an appeal thereagainst being barred as
per Section 209, the order rejecting the
application
for
injunction
would
be
revisable under Section 210. Reliance in
this regard has been placed on the decision
in the case of Talib Khan Vs. Additional
Commissioner
(Administration)
Moradabad Division, Moradabad3

6. Learned Additional Advocate
General
has
refuted
the
aforestated
contentions raised on behalf of the
petitioners by submitting as under :-

6.1 The provision for injunction
available under Section 146 is during the
course of a suit under Section 144 and
accordingly
an
order
rejecting
the
application seeking injunction cannot be
said to be "case decided" so as to be
amenable to a revision under Section 210.

6.2 The remedy of first appeal under
Section 207 of the Revenue Code, apart
from being available against a final order or
decree passed in a suit, is also available
against an order of the nature specified in
Order XLIII Rule 1 of the First Schedule of
the Code of Civil Procedure, 19084. Order
XLIII Rule 1 (r) provides for an appeal
against an order under Rule 1, Rule 2 of
Order XXXIX which is with regard to grant
of temporary injunctions in a suit. The
provision with regard to grant of injunction
under Section 146 being similarly worded
as the Order XXXIX Rule 1, an order
rejecting the application seeking injunction
420 INDIAN LAW REPORTS ALLAHABAD SERIES
in a pending suit under Section 144, would
be appealable as per clause (c) of subsection (2) of Section 207 of the Revenue
Code.

6.3 The bar under Section 209 against
filing an appeal against an order rejecting
an application for stay would not be
attracted inasmuch as in the present case, in
terms of the order in question the injunction
sought by the petitioners has been refused
and the same cannot be said to be an order
rejecting an application for stay. Placing
reliance upon the judgment in the case of
Mulraj vs Murti Raghonathji Maharaj5,
it has been contended that there is a
distinction
between
an
order of
an
injunction and an order of stay.

7. Rival contentions now fall for
consideration.

8. The provision with regard to
declaratory suits finds place under Chapter
IX of the Revenue Code. Section 144 is
with regard to declaratory suits by the
tenure holders and the same reads as
follows :-

"144. Declaratory suits by tenure
holders.─ (1) Any person claiming to be a
bhumidhar or asami of any holding or part
thereof, whether exclusively or jointly, with
any other person, may sue for a declaration
of his rights in such holding or part.

(2) In every suit under sub-section (1)
instituted by or on behalf of─

(a) a Bhumidhar, the State and the
Gram Panchayat shall be necessary parties;

(b) an asami, the land-holder shall be a
necessary party."

9. The corresponding provisions with
regard to declaratory suits under the U.P.
Zamindari Abolition and Land Reforms
Act, 19506 (now repealed) was contained
under Section 229-B of the said enactment,
and the same was as follows :-

"229-B. Declaratory suit by person
claiming to be an asami of a holding or
part thereof.─ (1) Any person claiming to
be an asami of a holding or any part
thereof, whether exclusively or jointly with
any other person, may sue the landholder
for a declaration of his rights as asami in
such holding or part, as the case may be.

(2) In any suit under sub-section (1)
any other person claiming to hold as asami
under the land-holder shall be impleaded as
defendant.

(3) The provisions of sub-sections (1)
and (2) shall mutatis mutandis apply to a
suit by a person claiming to be a bhumidhar
with the amendment that for the word
"landholder"
the
words
"the
State
Government and the Gaon Sabha are
substituted therein."

10. Section 144 contains the provision
for declaratory suits by tenure holders and
in terms thereof any person claiming to be
a bhumidhar or asami of any holding or
part thereof, whether exclusively or jointly
with any other person, may sue for a
declaration of his rights in such holding or
part thereof. The State and the Gram
Panchayat shall be necessary parties in
every such suit instituted by or on behalf of
the bhumidhar, and in the case of a suit
instituted by an asami, the landholder shall
be a necessary party.

11. Section 146 contains the provision
for injunction, and the same reads as
follows :-

"146. Provision for injunction.─ If
in the course of a suit under Section 144 or
145, it is proved by affidavit or otherwise
─
7 All. Mahendra Singh & Ors. Vs. State of U.P. & Ors.
421

(a) that any property, trees or crops
standing on the land in dispute is in danger
of being wasted, damaged or alienated by
any party to the suit; or

(b) that any party to the suit threatens
or intends to remove or dispose of the said
property, trees or crops in order to defeat
the ends of justice, the Court may grant a
temporary injunction, and where necessary,
also appoint a receiver."

12. The corresponding provision with
regard to grant of injunction during the
course of a suit instituted under the
provisions of Section 229-B and 229-C of
the UPZA and LR Act, as then it stood, was
contained under Section 229-D of the said
enactment which reads as follows :-

"229-D.
Provision
for
injunction.─ (1) If in the course of a suit
under the provisions of Sections 229-B and
229-C, it is proved by an affidavit or
otherwise-

(a) that any property, trees or crops
standing on the land in dispute is in danger
of being wasted, damaged or alienated by
any party to the suit; or

(b) that any party to the suit threatens
or intends to remove or dispose of the said
property, trees or crops in order to defeat
the ends of justice, the Court may grant a
temporary injunction and where necessary,
also appoint a receiver.

(2) Nothing in sub-section (1) shall
apply to a suit filed under sub-section (4-D)
of Section 122-B."

13. Section 146 contains the
provision for injunction and in terms
thereof, if in the course of a suit under
Section 144 or 145 it is proved by
affidavit or otherwise : i.e. (i) that any
property, trees or crops standing on the
land in dispute is in danger of being
wasted, damaged or alienated by any
party to the suit; or (ii) that any party to
the suit threatens or intends to remove or
dispose of the said property, trees or
crops in order to defeat the ends of
justice, the Court is empowered to grant a
temporary
injunction,
and
where
necessary, also appoint a receiver.

14. It would be relevant to notice
that Section 214 of the Revenue Code
provides for applicability of Code of
Civil Procedure, 1908 to every suit,
application or proceedings under the
Code. For ease of reference Section 214
of the Revenue Code is being extracted
below:-

"214. Applicability of Code of
Civil Procedure, 1908 and Limitation
Act, 1963.─ Unless otherwise expressly
provided by or under this Code, the
provisions
of
the
Code
of
Civil
Procedure, 1908 and the Limitation Act,
1963 shall apply to every suit, application
or proceedings under this Code."

15. Section 341 of the repealed
UPZA
and
LR Act,
provided
for
applicability of the provisions of the
Code of Civil Procedure, to proceedings
under the said Act, in similar terms.

16. The power to grant temporary
injunction during the pendency of a suit
has been conferred by Order XXXIX
Rule 1 of the CPC, which reads as
follows:-

"Order XXXIX Rule 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
422 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

17. The language and phraseology of
Section 146 of the Revenue Code as also
Section 229-D of the repealed UPZA and LR
Act, are in terms which are similar to the
language of Order XXXIX Rule 1, and
therefore the provisions under Section 146
would be seen as being supplemental to
Order XXXIX Rule 1 CPC, the applicability
whereof is provided as per terms of Section
214 of the Revenue Code.

18. Section 207 of the Revenue Code
provides for the remedy of a first appeal to
any party aggrieved by certain orders
specified in the section. Section 207 reads as
follows:-

"207. First appeal.─ (1) Any party
aggrieved by a final order or decree passed in
any suit, application or proceeding specified
in Column 2 of the Third Schedule, may refer
a first appeal to the Court or officer specified
against it in Column 4, where such order or
decree was passed by a Court or officer
specified against it in Column 3 thereof.

(2) A first appeal shall also lie against an
order of the nature specified ─

(a) in Section 47 of the Code of Civil
Procedure, 1908; or

(b) in Section 104 of the said Code; or

(c) in Order XLIII Rule 1 of the First
Schedule to the said Code.

(3) The period of limitation for filing a
first appeal under this section shall be thirty
days from the date of the order or decree
appealed against."

19. It is relevant to notice that as per
sub-section (2) of Section 207, a first appeal
shall also lie against an order of the nature
specified― (i) in Section 47 of the Code of
Civil Procedure, 1908; or (ii) in Section 104
of the said Code; or (iii) in Order XLIII Rule
1 of the First Schedule to the said Code.

20. It would therefore be seen that apart
from the remedy of a first appeal being
available against final orders or decrees
passed in a suit, application or proceeding
specified in column 2 of the Third Schedule,
the said remedy is also available against an
order of the nature specified in Section 104 of
the CPC or in Order XLIII Rule 1 of the First
Schedule of the CPC.

21. Section 104 of the CPC and also the
Order XLIII Rule 1 of the First Schedule of
the CPC, which have been referred under
sub-section (2) of Section 207 of the Revenue
Code, and which would be relevant for
appreciation of the controversy at hand are
being extracted below :-

"104. Orders from which appeal
lies.-- (1) An appeal shall lie from the
following orders, and save as otherwise
expressly provided in the body of this Code
or by any law for the time being in force,
from no other orders :--

(a) ***
7 All. Mahendra Singh & Ors. Vs. State of U.P. & Ors.
423

(b) ***

(c) ***

(d) ***

(e) ***

(f) ***

(ff) an order under Section 35-A;

(ffa) an order under Section 91 or
Section 92 refusing leave to institute a suit
of the nature referred to in Section 91 or
Section 92, as the case may be;

(g) an order under section 95;

(h) an order under any of the
provisions of this Code imposing a fine or
directing the arrest or detention in the civil
prison of any person except where such
arrest or detention is in execution of a
decree;

(i) any order made under rules from
which an appeal is expressly allowed by
rules:

Provided that no appeal shall lie
against any order specified in clause (ff)
save on the ground that no order, or an
order for the payment of a less amount,
ought to have been made.

(2) No appeal shall lie from any order
passed in appeal under this section."

"FIRST SCHEDULE

ORDER XLIII

APPEALS FROM ORDERS

"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 10-A of Order VII has
been followed;

(b) ***

(c) an order under Rule 9 of Order IX
rejecting an application (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 ex 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;

(l) 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 of
Order XXXIII rejecting an application for
permission to sue as an indigent persons;

(o) ***

(p) orders in interpleader-suit 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 2-A, Rule 4 or Rule 10 of Order
XXXIX;

(s) an order under Rule 1 or Rule 4 of
Order XL;
424 INDIAN LAW REPORTS ALLAHABAD SERIES

(t) an order of refusal under Rule 19 of
Order XLI to readmit, or under Rule 21 of
Order XLI to rehear, an appeal;

(u) an order under Rule 23 or Rule
23A of Order XLI remanding a case, where
an appeal would lie from the decree of the
Appellate Court;

(v) ***

(w) an order under Rule 4 of Order
XLVII granting an application for review."

22. It would be seen that sub-rule (r)
under Rule 1 of Order XLIII contains
reference to an order under Rule 1 of Order
XXXIX which relates to the provisions for
grant of temporary injunctions during the
pendency of a suit.

23. A combined reading of the
provisions contained under clause (b) and
clause (c) under sub-section (2) of Section
207 together with the provisions under
Section 104 of the CPC and Order XLIII
Rule 1 of the First Schedule thereof in
conjunction with Order XXXIX Rule 1 and
also the provisions relating to injunction
under Section 146 of the Revenue Code,
would lead to the inference that an order
with regard to injunction passed in exercise
of powers under Section 146 during the
course of a suit under Sections 144 or 145,
would be amenable to the remedy of a first
appeal under Section 207.

24. It would be relevant to notice that
sub-section (3) of Section 331 of the UPZA
and LR Act contained a similar provision
with regard to the remedy of an appeal from
an order of the nature mentioned in Section
104 of the CPC or in Order XLIII Rule 1 of
the First Schedule thereof.

25. Having arrived at an inference that
an order passed in exercise of powers under
Section 146 would be subject to an appeal
under Section 207, the contention raised on
behalf of the petitioners with regard to an
appeal against an order granting or rejecting
an application for a stay being barred in
terms of clause (d) of Section 209, would be
required to be adverted to.

26. Section 209 of the Revenue Code
which contains a bar against certain appeals,
is being extracted below :-

"209
Bar
against
certain
appeals..─Notwithstanding
anything
contained in Sections 207 and 208, no
appeal shall lie against any order or decree-

(a) made under Chapter XI of this
Code;

(b) granting or rejecting an application
for condonation of delay under Section 5 of
the Limitation Act, 1963;

(c) rejecting an application for revision;

(d)
granting
or
rejecting
an
application for stay;

(e)
remanding
the
case
to
any
subordinate Court;

(f) where such order or decree is of an
interim nature;

(g) passed by Court or officer with the
consent of parties; or

(h) where order has been passed exparte or by default:

Provided that any party aggrieved by
order passed ex-parte or by default, may
move application for setting aside such order
within a period of thirty days from the date
of the order:

Provided further that no such order
shall be reversed or altered without
previously summoning the party, in whose
favour order has been passed to appear and
be heard in support of it."

27. Section 209 provides that certain
orders or decrees are not appealable, and
clause (d) thereof refers to an order
7 All. Mahendra Singh & Ors. Vs. State of U.P. & Ors.
425
granting or rejecting an application for a
stay.

28. An appeal against order granting
or rejecting an application for stay would
therefore
be
barred
notwithstanding
anything contained under Sections 207 and
208.

29. The question which thus falls for
consideration is as to whether an order
passed under Section 146 of the Revenue
Code granting or refusing to grant a
temporary injunction can be held to be an
order granting or rejecting an application
for stay so as to attract the bar under
Section 209 and to hold such order to be
non-appealable.

30. The question with regard to the
effect of a stay order and its distinction
from an order of injunction fell for
consideration in the case of Mulraj vs
Murti Raghonathji Maharaj4 wherein it
was held that an order of injunction is
generally issued to a party by which it is
forbidden from doing certain acts whereas
a stay order is addressed to a court which
prohibits it from proceeding further. The
distinction between a stay order and an
order of injunction was drawn by observing
as follows :-

"8...In effect therefore a stay order is
more or less in the same position as an
order of injunction with one difference. An
order of injunction is generally issued to a
party and it is forbidden from doing certain
acts. It is well settled that in such a case the
party
must
have
knowledge
of
the
injunction order before it could be
penalised for disobeying it. Further it is
equally well settled that the injunction
order not being addressed to the court, if
the court proceeds in contravention of the
injunction order, the proceedings are not a
nullity. In the case of a stay order, as it is
addressed to the court and prohibits it from
proceeding further, as soon as the court has
knowledge of the order it is bound to obey
it and if it does not, it acts illegally, and all
proceedings taken after the knowledge of
the order would be a nullity. That in our
opinion is the only difference between an
order of injunction to a party and an order
of stay to a court. In both cases knowledge
of the party concerned or of the court is
necessary before the prohibition takes
effect. Take the case where a stay order has
been passed but it is never brought to the
notice of the court, and the court carries on
proceedings ignorance thereof. It can
hardly be said that the court has lost
jurisdiction because of some order of which
has no knowledge...

...

10. As we have already indicated, an
order of stay is as much a prohibitory order
as an injunction order and unless the court
to which it is addressed has knowledge of
it, it cannot deprive that court of the
jurisdiction to proceed with the execution
before it. But there is one difference
between an order of injunction and an order
of stay arising out of the fact that an
injunction order is usually passed against a
party while a stay order is addressed to the
court. As the stay order is addressed to the
court as soon as the court has knowledge of
it, it must stay its hand; if it does not do so,
it acts illegally. Therefore, in the case of a
stay order as opposed to an order of
injunction, as soon as the court has
knowledge of it, it must stay its hand and
further proceedings are illegal; but so long
as the court has no knowledge of the stay
order it does not lose the jurisdiction to
deal with the execution which it has under
the Code of Civil Procedure."

 (emphasis supplied)
426 INDIAN LAW REPORTS ALLAHABAD SERIES

31. The difference between an
injunction and an order of stay were
noticed in the decision of United States
Supreme Court in Jean Marc Nken,
petitioner Vs. Eric H. Holder, Jr.,
Attorney General7, wherein it was held
that a stay and an injunction were not
synonymous since an injunction refers to
an order requiring a person to act or refrain
from acting and a stay is a temporary
suspension of legal proceedings. It was
observed as follows :-

"An injunction and a stay have
typically been understood to serve different
purposes. The former is a means by which
a court tells someone what to do or not to
do.
When
a
court
employs
"the
extraordinary
remedy
of
injunction,"
Weinberger v. Romero-Barcelo8, it directs
the conduct of a party, and does so with the
backing of its full coercive powers."

32. It would therefore be seen that an
order of injunction and an order of stay
have been held to be distinct and to serve
different purposes. An injunction order is
generally issued to party and operates in
personam whereas a stay operates upon the
judicial proceedings itself by halting or
postponing the same wholly or in part, or
by temporarily divesting an order of its
enforceability.

33. An order of stay in a pending
review before a higher forum or Court may
have some overlap with injunction, in the
sense that both have the effect of
preventing further action before the legality
of
the
same
has been
conclusively
determined. A stay order achieves this
result by temporarily suspending the source
of authority to act ─ the order or the
judgment in question, while an order of
injunction has the effect of commanding or
forbidding the action and is a mandate
operating in personam.

34. In the case at hand the application
seeking
interim
relief
filed
by
the
petitioners under Section 146 of the
Revenue Code contains a prayer for
issuance of a direction for maintaining
status quo till the disposal of the
declaratory suit filed under Section 144.
The
affidavit
filed
along
with
the
application contains an assertion that the
defendants in the suit were trying to
forcibly take possession of the property in
question and to destroy the same, and in
view thereof an order directing status quo
was required.

35. The order dated 23.09.2021 in
terms of which the application under
Section 146 was disposed contains specific
reference to the prayer made on behalf of
the petitioners for a direction to maintain
status quo during the pendency of the suit
and thereafter the court upon consideration
of the material on record and the
submissions made by counsel for parties
drew a conclusion that there was no
material to indicate any urgency in the
matter which may require passing of an
order directing for maintaining status quo
and accordingly the application seeking
temporary injunction was rejected.

36. The application filed under
Section 146 was for a direction to the
parties to maintain status quo during the
pendency of the suit i.e. an injunctive
relief, which was declined in terms of the
order rejecting the application under
Section 146. The application in question
did not seek any relief for grant of a stay
order to any court or authority and was not
directed against any order passed by the
court or authority.
7 All. Mahendra Singh & Ors. Vs. State of U.P. & Ors.
427

37. It may be noticed that Section 146
contains a provision with regard to grant of
a temporary injunction in the course of a
suit under Section 144 or Section 145, and
the terminology of the section does not
cover orders granting stay. The marginal
heading of the section is titled as
"Provision for injunction" which clearly
goes to show the scope of the section and
its legislative intent.

38. The order dated 23.09.2021
passed by the respondent no. 2 before
whom the suit is pending therefore cannot
be held to be an order rejecting an
application for stay so as to attract the bar
under Section 209 and to make the order
non-appealable. The order in question,
from its plain reading and also taking into
consideration
the
contents
of
the
application along with the affidavit filed by
the petitioners seeking the prayer for
interim relief, makes it clear that it is an
order declining to grant a temporary
injunction as was being sought under
Section 146.

39. The temporary injunction which
was sought under Section 146 during the
pendency of the suit under Section 144 was
as per terms of the provisions under Order
XXXIX Rule 1 CPC and the said order
being referable to sub-rule (r) under Rule 1
of Order XLIII, the same would be of the
nature specified under clause (b) and clause
(c) of sub-section (2) of Section 207 and in
view thereof a first appeal under Section
207 would lie against the said order.

40. The order in question passed
under Section 146 having been held to be
appealable under Section 207 the said order
would not be revisable under Section 210
in view of the condition contained under
sub-section (1) of Section 210 which is to
the effect that the revision would lie only in
a case "in which no appeal lies".

41. The legal position can therefore
be summarized by stating that an order
passed
upon
an
application
seeking
temporary injunction under Section 146 of
the Revenue Code during the course of a
suit under Section 144 or 145 would be
amenable to a first appeal under Section
207, and would not be revisable under
Section 210.

42. As regards the decision in the case of
Talib Khan (supra) relied upon on behalf
of the petitioners, it may be observed that
the specific provision contained under subsection (3) of Section 331 of the UPZA and
LR Act, as then it stood, which provided
for a remedy of an appeal against an order
of the nature mentioned in Section 104 of
the CPC or in Order XLIII Rule 1 of the
First Schedule, having not been taken note
of the said decision cannot be held to be an
authority for the proposition that an order
rejecting an application for temporary
injunction during the pendency of a
declaratory suit under the Revenue Code or
under the analogous provision of the
repealed UPZA and LR Act, would be
revisable.

43. The Board of Revenue in terms of
an order dated 23.11.2021 has rejected the
revision preferred by the petitioners against
the order rejecting their application for
temporary injunction under Section 146
after observing that the order of the trial
court was based on merits and the
application for temporary injunction had
been rejected for the reason that there was
no material to support the claim sought to
be raised. Further, taking note of the fact
that the case was pending before the trial
court where the parties would have ample
428 INDIAN LAW REPORTS ALLAHABAD SERIES
opportunity to adduce evidence in support
of their case, the revision was rejected at
the stage of admission.

44. The order rejecting an application
seeking temporary injunction under Section
146 of the Revenue Code having been held
to be not amenable to the remedy of a
revision under Section 210, the order
passed by the Board of Revenue rejecting
the revision at the stage of admissibility
therefore cannot be faulted.

45. The writ petition thus fails and is
accordingly dismissed.

46. Counsel for the petitioners at this
stage seeks liberty to invoke statutory
remedy of an appeal against the order
rejecting their application for temporary
injunction. In this regard, it is only required
to be observed that dismissal of the writ
petition would not preclude the petitioners
from taking recourse to any appropriate
legal remedy as they may be advised.
----------
(2022)07ILR A428
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.07.2022

BEFORE

THE HON'BLE RAJEEV SINGH, J.

Application U/S 482 No. 2288 of 2022

Smt. Mamta & Anr. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Rishad Murtaza, Aishwarya Mishra, Syed Ali
Zafar Rizvi

Counsel for the Opposite Parties:
G.A.
A. Criminal Law - Code of Criminal
Procedure, 1973-Sections 482 - Protection
of Women from Domestic Violence Act,
2005-Section 12-applicant ousted from
her matrimonial house, when she was
carrying
the pregnancy of almost 7
months-applicant made complaint to the
police but no assistance was provided to
her-applicant filed complaint case- the
court below dismissed the application
with the order for calling the report of
Protection officer i.e. Domestic Incident
Report-Apex
Court
held
that
for
proceeding in the case u/s 12 of the Act,
2005, the DIR of the Protection Officer is
not mandatory before passing any order-if
DIR has been received by the Magistrate
either from the Protection Officer or the
service
provider
then
it
becomes
obligatory on the part of the Magistrate to
take note of the said report before passing
an order on the application filed by the
aggrieved party, but if no complaint or
application
of
domestic
violence
is
received by the Magistrate from the
Protection Officer or the service provider,
the question of considering such a report
does not rise at all. (Para 1 to 10)

B. The Magistrate has jurisdiction to take
cognizance of the complaint u/s 12 of the
D.V. Act in the absence of a Domestic
Incident Report under Rule 5 when the
complaint is not filed on behalf of the
aggrieved person through a Protection
Officer
or
service
provider.
Such
a
purposeful interpretation has to be given
bearing
in mind the
fact
that the
immediate relief would have to be given
to an aggrieved person and hence the
proviso
cannot
be
interpreted
in
a
manner which would be contrary to the
object of the D.V. Act which renders
Section 12 bereft of its object and
purpose.(Para 8)

The application is allowed. (E-6)
List of Cases cited:

1. Prabhad Tyagi Vs Kamlesh Devi (2022) SCC
Online SC 607