# Neelam Shukla & Ors v. Balika Shukla & Ors

- **Citation:** (2023) 11 ILRA 232
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-17
- **Case number:** Matters Under Article 227 No. 5782 of 2023
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/neelam-shukla-ors-v-balika-shukla-ors-49429
- **Pages:** 5

## Headnote

Interim Injunction-name of the petitioner
no.1 was recorded, being widow- permanent
injunction has been filed by the respondents-
petitioner no.1 has executed the sale deed in
favour of the petitioner nos.2 to 4 despite the
stay of PA-11 entry in her favour- the
petitioner no.1 could not have transferred the
part of the land in dispute on the basis of PA11 entry -because the rights accrued to the
petitioner no.1 -stands suspended -therefore
there is apprehension that the petitioner no.1
may further create third party rights -the said
property is required to be protected -the
respondents have also challenged the sale
deed executed by the petitioner no.1-the
interim injunction rightly granted by the
appellate court.
W.P. dismissed. (E-9)

Cases cited:

## Text

232 INDIAN LAW REPORTS ALLAHABAD SERIES
F.T.C.- 2 (under Section 14 of the Finance
Commissioner),
Gorakhpur
dated
21.11.2022 in SCC Revision No. 2 of 2021
(Sunita Devi Vs. Ratan Lal Jaiswal) is
absolutely perfect and valid order and does
not call for any interference.

19. The revision is devoid of merits
and is liable to be dismissed.

20. Accordingly, the revision is
Dismissed.
----------
(2023) 11 ILRA 232
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.11.2023
BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Matters Under Article 227 No. 5782 of 2023

Neelam Shukla & Ors. ...Petitioners
Versus
Balika Shukla & Ors. ...Respondents

Counsel for the Petitioners:
Samarth Saxena, Durgesh Kumar Shukla

Counsel for the Respondents:

Interim Injunction-name of the petitioner
no.1 was recorded, being widow- permanent
injunction has been filed by the respondents-
petitioner no.1 has executed the sale deed in
favour of the petitioner nos.2 to 4 despite the
stay of PA-11 entry in her favour- the
petitioner no.1 could not have transferred the
part of the land in dispute on the basis of PA11 entry -because the rights accrued to the
petitioner no.1 -stands suspended -therefore
there is apprehension that the petitioner no.1
may further create third party rights -the said
property is required to be protected -the
respondents have also challenged the sale
deed executed by the petitioner no.1-the
interim injunction rightly granted by the
appellate court.
W.P. dismissed. (E-9)

Cases cited:

1. Esha Ekta Appartments CHS Ltd.Vs Municipal
Corporation of Mumbai & anr.; (2012) 4 SCC
689

2. Shree Chamundi Mopeds Ltd. Vs Church of
South India Trust Association SCI CINOD
Secretariat, Madras;(1992)3 SCC1

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Shri Samarth Saxena,
learned counsel for the petitioners.

2. This petition has been filed
challenging the order dated 01.09.2023
passed in Civil Appeal No.6 of 2020;
Balika Shukla and Others Vs. Neelam
Shukla and Others, by the Additional
District Judge, Court No.1, Lakhimpur
Kheri, by means of which the appeal has
been
allowed
and
the
order
dated
07.02.2020 passed by the trial court in
Regular Suit No.1158 of 2018 has been set
aside and the parties have been directed to
maintain status quo in regard to the land in
dispute.

3. Learned counsel for the petitioner
submits that the husband of the petitioner
Shri Naveen Shukla was recorded tenure
holder of the land in dispute and in
possession of the house in question. After
his
death
the
petitioner
came
into
possession and her name was recorded in
PA-11. The respondents filed Regular Suit
No.1158 of 2018 for permanent injunction
on the ground that the petitioner no.1 has
remarried with one Shri Anshu, therefore
she has lost her rights in the property of her
husband Shri Naveen Shukla and the
respondents, being sisters of Shri Naveen
Shukla, are entitled for the property in
11 All. Neelam Shukla & Ors. Vs. Balika Shukla & Ors.
233
question, whereas the petitioner no.1 has
not remarried. The petitioner filed a written
statement and reply in suit denying the
remarriage of the petitioner and considering
the same the application for interim
injunction was rightly and in accordance
with law rejected by the trial court by
means of the order dated 07.02.2020. He
further submits that the respondents filed a
Civil Appeal No.6 of 2020 against the said
order. The petitioner filed an objection
against the appeal. But without considering
the same, the appeal has been allowed and
the interim injunction has been granted by
the appellate court, therefore the impugned
order is not sustainable in the eyes of law.

4. He further submits that the findings
recorded by the trial court could not have
been interfered with only because two
views are possible. He relies on Esha Ekta
Appartments
CHS
Limited
Vs.
Municipal Corporation of Mumbai and
Another; (2012) 4 SCC 689 and Shree
Chamundi Mopeds Ltd. Vs. Church of
South India Trust Association SCI
CINOD
Secretariat,
Madras;(1992)3
SCC1.

5. On the basis of above, learned
counsel for the petitioners submits that the
impugned order is liable to be set aside and
this petition is liable to be allowed.

6. I have considered the submissions
of learned counsel for the petitioners and
gone through the material placed on record
of this petition.

7. As borne out from the pleadings,
the recorded tenure holder of the land in
dispute was the father of the respondents
and husband of the petitioner no.1 Shri
Naveen Shukla, Shri Vidya Ram son of
Devta Deen, who died on 28.10.2017.
Thereafter the husband of the petitioner
no.1 and the brother of the respondents
died in an accident on 24.02.2018.
Thereafter, the name of the petitioner no.1
was recorded, being widow of late Naveen
Shukla under PA-11 on 09.03.2018. It
appears that thereafter the petitioner no.1
remarried to one Shri Anshu son of Babu
Ram. The Regular Suit No.1158 of 2018
for permanent injunction has been filed by
the respondents. The specific plea has been
taken by the respondents on the basis of
Paper No.39-C filed before the trial court
that the petitioner no.1 has remarried to
Anshu, therefore she has lost her right in
the land in dispute and entry dated
09.03.2018 in PA-11 has been stayed by the
Tehsildar- Dharaura on 18.07.2018. Though
remarriage has been denied by the
petitioner no.1 in the objection but no
specific denial has been made. The
petitioner no.1 claims that Anshu is the
relative of the petitioner but the relation has
not been disclosed. The trial court rejected
the application for interim injunction by
means of the order dated 07.02.2020 on the
ground that the respondents i.e. the
plaintiffs in the suit have failed to make out
a prima facie case, therefore the balance of
convenience is not in their favour and there
can not be any irreparable loss to them.

8. The said order was challenged by
the respondents in Civil Appeal No.6 of
2020, against which an objection was also
filed by the petitioners. The appellate court,
after consider the pleadings and material on
record, allowed the appeal on the ground
that PA-11 entry made in favour of the
petitioners
has
been
stayed
by
the
Tehsildar- Dharaura by means of the order
dated 18.07.2018, even then the petitioner
no.1 has executed a sale deed dated
30.07.2019 in favour of the petitioner nos.2
to 4 and the petitioner has also remarried
234 INDIAN LAW REPORTS ALLAHABAD SERIES
with Anshu son of Babu Ram, which has
not specifically been denied by the
petitioner no.1. This finding has been
recorded on the basis of Paper No.39-C
filed before the trial court, which is a
Matratva Evam Bal Suraksha Card (MCP
Card) showing Neelam Shukla wife of
Anshu.

9. In the objection filed before the
trial court, the petitioner no.1, though has
denied the remarriage but it has not
specifically been denied and even after
stating that Anshu is her relative, the
relation has not been disclosed. However in
the objection filed before the appellate
court this plea has also not been taken and
only a plea has been taken that false and
forged charge has been levelled after
removing the name of the husband of the
petitioner Naveen Shukla and mentioning
the name of Anshu. The fact of execution
of sale deed dated 30.07.2019, in spite of
the stay of PA-11 entry by means of the
order dated 18.07.2018 by the Tehsildar-
Dharaura, has also not been denied by the
petitioner, therefore, it is apparent that the
petitioner no.1 has executed the sale deed
in favour of the petitioner nos.2 to 4 despite
the stay of PA-11 entry in her favour,
whereas she could not have done so,
therefore this Court is of the view that the
appellate court has not committed any
illegality or error in passing the impugned
order dated 01.09.2023, allowing the
appeal and granting the interim injunction
which is necessary in the facts and
circumstances of the case to save the
property in dispute and avoid multiplicity
of litigation in future, on the basis of the
pleadings and material on record.

10. So far as the argument advanced
by the learned counsel for the petitioners
that if two views are possible, the appellate
court can not set aside the order passed by
the trial court and take different view, this
Court is of the view that after the stay of
PA-11 entry in favour of the petitioner no.1,
the fact which has been considered by the
trial court in its order dated 07.02.2020 but
no finding has been recorded in this regard,
no other view is possible except that the
petitioner no.1 could not have proceeded
even to execute the sale deed of the
property in dispute or it's any part because
the PA-11 entry is not operative on account
of stay, even thereafter, the petitioner no.1
has executed the sale deed in clear violation
of the interim order passed by the Tehsildar.

11. The Hon'ble Supreme Court, in
the case of Esha Ekta Appartments CHS
Limited Vs. Municipal Corporation of
Mumbai and Another (Supra), relied by
the learned counsel for the petitioners, has
relied on the judgement passed in the case
of Wander Ltd. Vs. Antox India (P) Ltd
1990 Supp SCC 727, in which the Hon'ble
Supreme Court has held that in such
appeals, the appellate court will not
interfere with the exercise of discretion of
the court of first instance and substitute its
own discretion except where the discretion
has been shown to have been exercised
arbitrarily, or capriciously or perversely or
where the court had ignored the settled
principles of law regulating grant or refusal
of interlocutory injunctions, the paragraphs
19 and 20 of Esha Ekta Appartments
CHS Limited Vs. Municipal Corporation
of Mumbai and Another (Supra) is
extracted below:-

"19. We have considered the
respective
submissions
and
carefully
scrutinized the record. The scope of the
appellate court's power to interfere with an
interim order passed by the court of first
instance has bee considered by this Court
11 All. Neelam Shukla & Ors. Vs. Balika Shukla & Ors.
235
in several cases. In Wander Ltd. v. Antox
Indic (F Ltd, the Court was called upon to
consider the correctness of an order of
injunction passed by the Division Bench of
the High Court which had reversed the
order of the learned Single Judge declining
the respondents prayer for interim relief.
This Court set aside the order of the
Division Bench and made the following
observations: (SC? ?. 733, para 14)

"14.... In such appeals, the
appellate court will not interfere with the
exercise of discretion of the court of first
instance and substitute its own discretion
except where the discretion has been shown
to have been exercised arbitrarily, or
capriciously or perversely or where the
court had ignored the settled principles of
law regulating grant or refusal of,
interlocutory
injunctions.
An
appeal
against exercise of discretion is said to be
an appeal on principle. Appellate court will
not reassess the material and seek to reach
a conclusion different from the one reached
by the court below if the one reached by
that court was reasonably possible on the
material. The appellate court would
normally not be justified in interfering with
the exercise of discretion under appeal
solely on the ground that if it had
considered the matter at the trial stage it
would have come to a contrary conclusion.
If the discretion has been exercised by the
trial court reasonably and in a judicial
manner the fact that the appellate court
would have taken a different view may not
justify interference with the trial court's
exercise of discretion.

20. In Skyline Education Institute
(India) (P) Ltd. v. S.L. Vaswani, the threeJudge Bench considered a somewhat
similar question in the context of the refusal
of the trial court and the High Court to
pass an order of temporary injunction,
referred to the judgments in Wander Ltd. v.
Antox India (P) Ltd., N.R. Dongre v.
Whirlpool Corpn. and observed: (S.L.
Vaswani case, SCC p. 153, para 22)

"22. The ratio of the above noted
judgments is that once the court of first
instance exercises its discretion to grant or
refuse to grant relief of temporary
injunction and the said exercise of
discretion
is
based
upon
objective
consideration of the material placed before
the court and is supported by cogent
reasons, the appellate, court will be loath
to interfere simply because on a de novo
consideration of the matter it is possible for
the appellate court to form a different
opinion on the issues of prima facie case,
balance of convenience, irreparable injury
and equity.>

12. The Hon'ble Supreme court, in the
case of Shree Chamundi Mopeds Ltd. Vs.
Church of South India Trust Association
SCI
CINOD
Secretariat,
Madras
(Supra), relied by the learned counsel for
the petitioners, has held in paragraph 10
that while considering the effect of an
interim order staying the operation of the
order under challenge, a distinction has to
be made between quashing of an order and
stay of operation of an order. Quashing of
an order results in the restoration of the
position as it stood on the date of the
passing of the order which has been
quashed. The stay of operation of an order
does not, however, lead to such a result. It
only means that the order which has been
stayed would not be operative from the date
of the passing of the stay order and it does
not mean that the said order has been wiped
out from existence.

13. In view of above, the stay of PA11 entry in favour of the petitioner no.1,
would not be operative from the date of
grant of stay order. Thus, the petitioner no.1
236 INDIAN LAW REPORTS ALLAHABAD SERIES
could not have transferred the part of the
land in dispute on the basis of PA-11 entry
because the rights accrued to the petitioner
no.1 on the basis of the said entry stands
suspended but the petitioner no.1 has
executed the sale deed in favour of the
petitioner nos.2 to 4, therefore there is
apprehension that the petitioner no.1 may
further create third party rights on the land in
dispute, therefore the said property is required
to be protected to avoid the multiplicity of the
litigation also in future. The respondents have
also challenged the sale deed executed by the
petitioner no.1 in favour of the petitioner nos.2 to 4
by way of an amendment in the pending civil suit.
This Court is of the view that the interim
injunction has rightly and in accordance with law
has been granted by the appellate court by means
of the impugned order dated 01.09.2023.

14. In view of above and considering
the over all facts and circumstances of the
case, this Court is of the view that the
impugned order dated 01.09.2023 has
rightly and in accordance with law has been
passed by the appellate court considering
the
prima
facie
case,
balance
of
convenience and irreparable loss, which
may be caused to the respondents in case
the injunction is not granted and there is no
illegality or error in it, which may call for
any interference by this Court. This petition
is misconceived and lacks merit.

15. The petition is, accordingly,
dismissed. No order as to costs.
----------
(2023) 11 ILRA 236
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.08.2023
BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.
Matters Under Article 227 No. 8519 of 2023
(Civil)
Vijay Raj & Ors. ...Petitioners
Versus
District Magistrate/Arbiter Muzaffarnagar
& Ors. ...Respondents

Counsel for the Petitioners:
Sri Vivek Saran, Sri Atul Dayal (Sr.
Advocate)

Counsel for the Respondents:
C.S.C.

Land acquired by the National Highway
Authority of India - competent authority
passed a final award-the rate determined by the
competent was much less than the prevalent
market rate of the land -application before the
competent authority for referring the matter to
the Arbitrator- application is vague and does not
disclose the object and purpose -application
lacks pleading as to whether these documents
are needed to furnish proof to establish the
grounds enumerated in Section 34(2)(a)(i) to
(v)- subordinate court has rightly held that it
has no power under Section 34 of the Act to
allow amendment to bring out new facts which
were not pleaded before the Tribunal-it is only
Arbitrator who is empowered under Section
23(3) to permit the amendment -no such power
is vested with the subordinate court dealing with
the proceeding u/s 34 of the Act, 1996impugned order not illegal.

W.P. dismissed. (E-9)

Cases cited:

1. M/s Alpine Housing Development Corporation
Pvt. Ltd. Vs Ashok S. Dhariwal & ors.2023 SCC
Online SC 55

2. Fiza Developers & Inter-Trade Pvt. Ltd.Vs
AMCI (India) Pvt. Ltd.& anr. (2009) 17 SCC 796

3. Emkay Global Finance Services Ltd.Vs Girdhar
Sondhi (2018) 9 SCC 49

4. Canara Nidhi Ltd.Vs M. Shashikala &
ors.(2019) 9 SCC 462

(Delivered by Hon'ble Saral Srivastava, J.)