# No.136 of 2001 "Harpal v. State of U.P."

- **Citation:** (2012) 3 ILRA 1144
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-09-11
- **Case number:** Misc. Single No. 4984 of 2012
- **Bench:** Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/no-136-of-2001-harpal-v-state-of-u-p-42353
- **Pages:** 6

## Headnote

Constitution of India, Article-226- Grant
of
temporary
injunction-principle
discussed-if trail Court from pleading,
affidavit and materials on record not
satisfied about prima faci case, balance
of convenience and irreparable lossdeclined to grant ex-parte injunction in
absence
of
defendant-rightly
issued
notice-such order neither arbitrary nor
illegal-can not be interfered by Writ
Court.

Held: Para-17

In the instant case, it appears that the
petitioner has failed to prove that he has
a prima facie case as well as balance of
convenience in his favour and, therefore,
trial court refused to grant exparte
interim injunction. There appears no
legal error in the impugned order dated
30.8.2012 by which notices have been
issued to the respondents. The court
below has committed no error in issuing
notices to the respondents rather it is
perfectly in accordance with law.
Case Law discussed:
[2010 (28) LCD 1712]; JT 2009 (15) SC 33;
(1993) 3 SCC 161; (1992) SCC 719

## Text

1144 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

17. Section 209 deals with the
commitment of the case to the court of
sessions when offence is triable exclusively
by the court of sessions.

18. In this case the complaint was
lodged by an Additional Sessions Judge and
looking into the facts and circumstances that
the offence punishable under Section 195
IPC is exclusively triable by the court of
Sessions, the case was committed to the
court of Sessions. In these circumstances, I
do not find any violation of the provisions
of Section 209 of Cr.P.C. Moreover,
offence punishable under Section 195 IPC
is exclusively triable by the court of
sessions hence there was no illegality in
committing the case to the court of sessions.
No doubt Section 209 provides that the case
shall be committed to the court of sessions
after complying with the provisions of
Sections 207 and 208 Cr.P.C. but as
mentioned above, the statements of the
witnesses were not recorded in view of the
fact that the complaint was lodged by an
Additional Sessions Judge in discharge of
his official duties and there was no need to
examine the complainant as well as
witnesses in view of the provisions of
proviso to Section 200 Cr.P.C., the question
of compliance of provisions of Section 208
Cr.P.C. do not arise.

19. Learned A.G.A. has also drawn
my attention towards the fact that present
revisionist Harpal Singh had moved a
petition under Section 482 Cr.P.C. before
this Court which was registered as Criminal
Misc. Application No.3883 of 2001 and
was dismissed vide order dated 30.8.2007.

20. Another Criminal Revision
No.136 of 2001 "Harpal Vs. State of U.P."
was also filed by the present revisionist
which was also dismissed vide order dated
18.2.2008.

21. The above conduct of the present
revisionist shows that he simply intended to
delay the proceedings against him for one
reason or the other.

22. My attention has also been drawn
towards Laxmi Narain Singh Vs. State of
U.P., 1999-JIC-2-554, in which this Court
has held that if the complaint has been filed
by a judicial authority under Section 195
Cr.P.C. then provisions of Section 202 and
203 Cr.P.C. are not applicable and the
complaint has to be proceeded with as if it
was instituted on a police report.

23. In view of the above discussion, I
do not find any illegality in the impugned
order dated 5.11.2009. The revision is
dismissed and the revisionist is directed to
appear before the court concerned on the
date fixed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.09.2012

BEFORE
THE HON'BLE DEVENDRA KUMAR ARORA, J

Misc. Single No. 4984 of 2012

M/S Viraj Construction (P) Ltd.

 ...Applicant
Versus
Civil Judge (S.D) Lucknow & others

 ...Respondents

Counsel for the Petitioner:
Sri Sachin Garg
Sri
Alok
Saran

Counsel for the Respondents:
Sri Manish Kumar
3 All] M/S Viraj Construction (P) Ltd. V. Civil Judge (S.D) Lucknow & others
1145

Constitution of India, Article-226- Grant
of
temporary
injunction-principle
discussed-if trail Court from pleading,
affidavit and materials on record not
satisfied about prima faci case, balance
of convenience and irreparable lossdeclined to grant ex-parte injunction in
absence
of
defendant-rightly
issued
notice-such order neither arbitrary nor
illegal-can not be interfered by Writ
Court.

Held: Para-17

In the instant case, it appears that the
petitioner has failed to prove that he has
a prima facie case as well as balance of
convenience in his favour and, therefore,
trial court refused to grant exparte
interim injunction. There appears no
legal error in the impugned order dated
30.8.2012 by which notices have been
issued to the respondents. The court
below has committed no error in issuing
notices to the respondents rather it is
perfectly in accordance with law.
Case Law discussed:
[2010 (28) LCD 1712]; JT 2009 (15) SC 33;
(1993) 3 SCC 161; (1992) SCC 719

(Delivered by Hon'ble D.K. Arora, J.)

1. Heard Shri N.K. Seth, learned
Senior Advocate, assisted by Shri Sachin
Garg, Advocate for the petitioner and
Shri Mohd. Arif Khan, learned Senior
Advocate, assisted by Shri Rajiv Singh
Chauhan and Shri Mohd. Babar Khan,
Advocates for the opposite party no.4.

2. By means of present writ
petition, the petitioner is seeking a writ
of certiorari for quashing the order dated
30.08.2012, passed by the Civil Judge
(Senior Division), Lucknow (In-Charge)
in Regular Suit No.1121 of 2012 (M/s
Viraj Constructions Pvt. Ltd. Vs. Dr.
Rajendra Tewari & others), by which the
learned Trial Court while issuing notices
to the private respondents, fixed date
16.9.2012 for disposal of the application
no. C-6 moved by the plaintiff (petitioner
herein) under Order 39 Rule 1 & 2
readwith section 151 C.P.C. and declined
to grant ex-parte temporary injunction
with the observation that he did not find
sufficient ground for passing ex-parte
interim injunction.

3. Facts of the case, in brief, are
that in the year 1987, a partition amongst
Smt. Laxmi Bai Chawla, Sri Ram
Prakash Chawla, Sri Shanti Swaroop
Chawla and Sri Charanjeet Lal Chawla
had taken place vide partition deed dated
22.4.1987 which was duly registered in
the office of the Sub Registrar, Lucknow.
By virtue of the said partition, Sri Ram
Prakash Chawla became the absolute
owner of the Khasra Plot No. 92
measuring out 8 Bigha, 9 Biswa and 15
Biswansi and on his death on 16.3.2000,
his wife Smt. Devki Narain Chawla, sons
Sri Harish Kumar Chawla, Sri Ashok
Kumar Chawla and Sri Bharat Bhushan
Chawla became absolute owner of the
said khasra plot no. 92 & 254. The
petitioner
purchased
plot
no.
92,measuring about 1.993 Hectares,
situated at village Semra, pargana, tehsil
and
district
Lucknow
and
is
in
possession of the same. The petitioner
purchased the said plot through separate
sale deeds dated 18.7.2011 (Annexures
No. 5to 8) from the legal heirs and
representatives of late Ram Prakash
Chawla, namely, Smt. Devki Narain
Chawla, S/Sri Ashok Chawla, Harish
Chawla and Bharat Bhushan Chawla.

4. After purchase of the said plot no.
92, the petitioner became owner of the
same and, as such, he moved applications
1146 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
for mutation vide Appln. nos. 3323/201112 to 3326/2011-12 before the Tehsildar
(Judicial) Sadar, Lucknow and the same
are pending waiting their own turn for
disposal. Opposite Party No. 11 (Mithilesh
Kumar) who is the alleged Attorney of Sri
Charanjeet Lal Chawla, in collusion and
conspiracy with Dr. Rajendra Tewari
(opposite party no. 2) sold the said khasra
plot no. 92, measuring about 0.240
hectares in favour of Dr. Rajendra Tewari
(opposite party no. 2) by virtue of
fraudulent sale deed dated 30.7.1999
(Annexure No. 9). He further sold a plot of
same area from Khasra No. 92 to Dr.
Shashi Singh (Opposite Party No. 3) vide
sale deed dated 30.7.1999 (Annexure No.
10).

5. As per the partition deed dated
22.4.1987, Sri Charanjeet Lal Chawla was
having no right , title or interest in the
khasra plot no. 92 and, as such, the two
sale deeds dated 30.7.1999 are sham
transaction and they are null and void
conferring no right, title or interest in
favour of Dr. Rajendra Tiwari (Opposite
Party no. 2) or Dr. Shashi Singh (Opposite
Party No. 3). Dr. Rajendra Tewari as well
as Dr. Shashi Singh (Opposite Parties no. 2
& 3) both were fully aware about the said
partition deed dated 22.4.1987, executed
between Sri Ram Prakash Chawla , Sri
Shanti Swaroop Chawla, Sri Charamjeet
Lal Chawla and Smt.Laxmi Bai Chawla
and they were also fully aware about the
fact that the khasra plot no. 92 had fallen
into the share of Sri Ram Prakash Chawla.
Thereafter it appears that Dr. Shashi Singh
and Dr. Rajendra Tewari (Opposite Parties
No. 2 & 3) sold a part of the aforesaid
khasra plot no. 92 to Smt. Rekha Devi by
virtue of fraudulent sale deed dated
4.8.2011 (Annexure No. 11). When the
petitioner came to know about the sale
deed dated 30.7.1999 as well as sale deed
dated 4.8.2011, he opposed the mutation
application before the Tehsildar, Lucknow.
Smt. Rekha Devi (Opposite Party No. 4)
on 18.8.2012 came to the property of the
petitioner
alongwith
some
anti-social
elements and tried to grab the said plot no.
92. The petitioner approached the Court of
Civil Judge (Senior Division), Lucknow on
22.8.2012 by filing Regular Suit No. 1121
of 2012 (M/s Viraj Constructions Pvt. Ltd.
vs. Dr. Rajendra Tewari and others)
seeking declaration of sale deed as well as
for permanent injunction. The petitioner
also filed an application under Order 39,
Rules 1 & 2 read with section 151 of C
.P.C. With the prayer that during pendency
of suit, the opposite parties may be
restrained from interfering
with the
peaceful possession of the petitioner over
plot no. 92. On the said application, notices
were issued to the opposite parties no. 2 to
11 vide order dated 30.8.2012 thereby
fixing 16.9.2012 for disposal of the said
application. Being aggrieved for not
passing exparte order in his favour, the
petitioner has approached this Court.

6. Shri Mohd. Arif Khan, learned
Senior
Advocate,
who
has
put
in
appearance on behalf of opposite party
no.4, while opposing the writ petition,
raised a preliminary objection with respect
to maintainability of the writ petition. In
support of his submission, Shri Khan
placed reliance on the judgment of this
Court reported in [2010 (28) LCD 1712],
Hari Chaitanya Brahmananda vs. Civil
Judge (Junior Division), Court No.15,
Sultanpur and others.

7. I have heard learned counsel for
parties and perused the record.
3 All] M/S Viraj Construction (P) Ltd. V. Civil Judge (S.D) Lucknow & others
1147

8. It is not disputed that the petitioner
has filed a suit for permanent injunction
registered as Regular Suit No. 1121 of
2012 (M/s Viraj Constructions Pvt. Ltd. vs.
Dr. Rajendra Tewari & others) in the court
of Civil Judge (Senior Division), Lucknow
and he moved an application for temporary
injunction which was heard on 30.8.2012
and notices were issued to opposite parties
no. 2 to 11, fixing 16.9.2012 by the said
impugned order dated 30.8.2012.

9. From perusal of order dated
30.8.2012, it is evident that the court below
declined to pass any interim injunction in
favour of the plaintiff/ petitioner without
giving an opportunity of hearing to the
opposite parties and issued notices to the
private opposite parties accordingly.

10. Now, the question arises is as to
what principles should be followed by the
court below in the matter of grant of ad
interim injunction. Of course, grant of
injunction is within the discretion of the
court and such discretion is not to be
exercised in favour of the plaintiff only.
Before granting interim injunction the
court must be satisfied that a strong prima
facie case has been made out by the
plaintiff including on the question of
maintainability of the suit and that the
balance of convenience is also in his
favour and refusal of injunction would
cause irreparable injury to him.

11. It is well settled that in order to
get an order of injunction, one has to prove
that he has made out a prima facie case in
his favour. The Hon'ble Supreme Court in
Civil Appeal Nos. 7966 -7967 (Arising
out of SLP Nos. 9165 -9166/2009), Kashi
Math Samsthan and another vs. Srimad
Sudhindra Thirtha Swami and another,
reported in JT 2009 (15) SC 33, has
expressed its view in para 13, which reads
as under:

 It is well settled that in order to
obtain an order of injunction, the party
who seeks for grant of such injunction has
to prove that he has made out a prima
facie case to go for trial, the balance of
convenience is also in his favour and he
will suffer irreparable loss and injury if
injunction is not granted. But it is equally
well settled that when a party fails to prove
prima facie case to go for trial, question of
considering the balance of convenience or
irreparable loss and injury to the party
concerned would not be material at all,
that is to say, if that party fails to prove
prima facie case to go for trial, it is not
open to the Court to grant injunction in his
favour even if, he has made out a case of
balance of convenience being in his favour
and would suffer irreparable loss and
injury if no injunction order is granted.

12. Further, the Hon'ble Apex Court
in the case of Shiv Kumar Chadha Vs.
Municipal Corporation of Delhi, (1993)
3SCC 161, has held that a party is not
entitled to an order of injunction as a
matter of right. The relevant para reads as
under:-

" It has been pointed out repeatedly
that a party is not entitled to an order of
injunction as a matter of right or course,
grant of injunction is within the discretion
of the court and such discretion is not to be
exercised in favour of the plaintiff only if it
is proved to the satisfaction of the court
that unless the defendant is restrained by
an order of injunction, an irreparable loss
or damage will be caused to the plaintiff
during the pendency of the suit. The
purpose of temporary injection is, thus, to
maintain the status quo. The Court grants
1148 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
such
relief
according to
the
legal
principles- ex debito justitiae. Before any
such order is passed the court must be
satisfied that a strong prima facie case has
been made out by the plaintiff including on
the question of maintainability of the suit
and that the balance of convenience is in
his favour and refusal of injunction would
cause irreparable injury to him".

13. In the case of Dalpat Kumar vs.
Prahlad Singh, reported in (1992) SCC
719 the Hon'ble Supreme Court held that the
phrases "Prima facie case", "balance of
convenience" and "irreparable loss" are not
rhetoric phrases for incantation but words of
width and elasticity, intended to meet myriad
situations presented by men's ingenuity in
given facts and circumstances and should
always be hedged with sound exercise of
judicial discretion to meet the ends of justice.

14. In Woodroffe's Law Relating to
Injunctions, 2nd revised and enlarged
Edn., 1992, at page 56 in para 30.01, it is
stated that-

"an injunction will only be granted to
prevent the breach of an obligation (that is a
duty enforceable by law ) existing in favour
of the applicant who must have personal
interest in the matter. In the first place,
therefore, an interference by injunction is
founded on the existence of a legal right, an
applicant must be able to show a fair prima
facie case in support of the title which he
asserts."

15. As per the Law Quarterly Review
Vol. 109, page 432 ( at p. 446), A.A.S.
Zuckerman under the title "Mareva
Injunctions and Security for Judgment in
a Framework of Interlocutory Remedies,
the Court considering an application for an
interlocutory injunction has four factors to
consider; first, whether the plaintiff would
suffer irreparable harm if the injunction is
denied;
secondly,
whether
this
harm
outweighs any irreparable harm that the
defendant would suffer from an injunction;
thirdly, the parties' relative prospects of
success on the merits; fourthly, any public
interest involved in the decision. The central
objective of interlocutory injunctions should
therefore be seen as reducing the risk that
rights will be irreparably harmed during the
inevitable delay of litigation.

16. In view of the aforesaid factual
background, this Court is of the view that in
a suit for injunction while disposing of an
application for temporary injunction, the
Court should inquire on affidavit, evidence
and other materials placed before it to find a
strong prima facie case, balance of
convenience and irreparable loss before
granting
injunction
in
favour
of
a
person/plaintiff. However, in case the Court
has any doubt in its mind in spite of material
evidence and documents placed by a
person/plaintiff in support of his case for
grant of temporary injunction, and prior to
granting the same, issues notices to the
defendant calling upon him to file objections,
then the said action on the part of the court is
neither illegal nor arbitrary rather the same is
in conformity to the principles of natural
justice and is in accordance with law.

17. In the instant case, it appears that
the petitioner has failed to prove that he has a
prima facie case as well as balance of
convenience in his favour and, therefore, trial
court refused to grant exparte interim
injunction. There appears no legal error in
the impugned order dated 30.8.2012 by
which notices have been issued to the
respondents.
The
court
below
has
committed no error in issuing notices to the
3 All] Neeraj Chaurasia and another V. Uttar Pradesh Power Corporation Ltd. and another 1149
respondents rather it is perfectly in
accordance with law.

18. On repeated query, learned
counsel for the petitioner failed to point out
any irreparable loss caused to him by not
granting interim injunction in his favour
and
which
may
warrant
immediate
interference by this Court.

19. In view of the above, I do not
find any good reason to interfere with the
matter.

20. The writ petition lacks merit and
is, therefore, dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.09.2012

BEFORE
THE HON'BLE VINEET SARAN, J.
THE HON'BLE VIRENDRA VIKRAM SINGH, J.

Civil Misc. Writ Petition no. 13312 of 2011

Neeraj Chaurasia and another

 ...Petitioner
Versus
Uttar Pradesh Power Corporation Ltd.
and another

 ...Respondents

Counsel for the Petitioner:
Sri Saurabh Basu
Sri U.N. Sharma
Sri Vishal Singh

Counsel for the Respondents:
Sri Sandeep Kumar Srivastava
Sri Dharemdra Vaish

Constitution
of
India-Article
226cancellation of Board's Resolution-by
which selection list of accounts officer
canceled-petitioner duly selected on post
of
Accounts
Officer-not
given
appointment-no
reason
given
for
cancellation-either by Board resolution
or in counter affidavit-certainly selected
candidates has no right to appointmentat the same time Board can not act
arbitrary manner-cancellation without
reason-held-illegal
direction
to
issue
appointment within 3 month given.

Held: Para 8

Thus
from
the
affidavits
of
the
respondents as also from the perusal of
the resolutions of the board it is quite
evident that the selection in question has
been turned down by the board without
there being any ground in existence for
the same. There is no mention at all that
the selected candidates including the
petitioners had any fault or fraud on
their part or that the petitioners or any
of the selected candidate did not have
the
requisite
qualification
for
their
appointment to the post of Accounts
Officer in the Board of the respondents.
Thus
there
was
no
illegality
or
irregularity in the selection process nor
was there any wrong act on the part of
the petitioners. Under the prevailing
circumstances it is evident that the
respondent Board has cancelled the
select list without any reason or rhyme
in an arbitrary manner.
Case law discussed:
(1993) SCC 573; (1991) 3 SCC 47; (2003) 7
SCC 285; (1999) 6 SCC 49

(Delivered by Hon'ble Virendra Vikram
Singh, J.)

1. The petitioners, by filing the
present petition, have prayed for issue of
mandamus
for
cancellation
of
the
resolution and approval thereof, whereby
the select list including the name of the
petitioners for the appointment of the
Accounts Officer in the respondent's
department was cancelled. The petitioners
applied for the appointment on the post of
Accounts Officer, in response to the
advertisement
Annexure1
dated