# Plaintiff v. Smt. Meena Devi Defendant

- **Citation:** (2008) 1 ILRA 147
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-12-06
- **Case number:** First Appeal From Order No. 3133 of 2007
- **Bench:** V.M. Sahai, R.N. Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/plaintiff-v-smt-meena-devi-defendant-41251
- **Pages:** 4

## Headnote

Code of Civil Procedure-Section 151
readwith Order 31 rule 1 and 2-Grant of
injunction in favour of defendant-the
order
passed
by
the
Trial
Courtchallenged beyond the ambit of the
provision of the order 39 rule 1-heldTrial Court rightly exercised its power
under section 151 C.P.C. warrant no
interference

Held: Para 5 & 6

This plea is not acceptable that relief for
injunction cannot be granted in favour of
defendant because no court fee has been
paid by her on the basis of principle of
avoiding multiplicity of proceedings. In
that
case,
the
tenant
had
sought
permission against landlord to carry out
only repair in order to make premises
habitable and the injunction was granted
against the landlord because by granting
injunction, he was not likely to suffer at
all.

In view of our above discussions, we
come to the conclusion that while
passing the impugned order, the learned
trial court has acted strictly on the basis
of principles of law and the impugned
order needs no interference in appeal
and
consequently,
the
appeal
is
summarily dismissed
Case law discussed:
2000(91) RD 615, 1972, 1972 ALJ 379, AIR
1989 Alld 164

## Text

1 All] Markandey Maurya V. State of U.P. and others
147

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2007

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE R.N. MISHRA, J.

First Appeal From Order No. 3133 of 2007

Santosh Kumar alias Tata

...Plaintiff-appellant
Versus
Smt. Meena Devi ...Defendant-Respondent

Counsel for the Appellant:
Sri. V. Singh
Sri. J.S. Pandey
Sri. Phaujdar Rai
Sri. Ranjay Kumar

Counsel for the Opposite Party:
Sri. Pradeep Kumar Rai

Code of Civil Procedure-Section 151
readwith Order 31 rule 1 and 2-Grant of
injunction in favour of defendant-the
order
passed
by
the
Trial
Courtchallenged beyond the ambit of the
provision of the order 39 rule 1-heldTrial Court rightly exercised its power
under section 151 C.P.C. warrant no
interference

Held: Para 5 & 6

This plea is not acceptable that relief for
injunction cannot be granted in favour of
defendant because no court fee has been
paid by her on the basis of principle of
avoiding multiplicity of proceedings. In
that
case,
the
tenant
had
sought
permission against landlord to carry out
only repair in order to make premises
habitable and the injunction was granted
against the landlord because by granting
injunction, he was not likely to suffer at
all.

In view of our above discussions, we
come to the conclusion that while
passing the impugned order, the learned
trial court has acted strictly on the basis
of principles of law and the impugned
order needs no interference in appeal
and
consequently,
the
appeal
is
summarily dismissed
Case law discussed:
2000(91) RD 615, 1972, 1972 ALJ 379, AIR
1989 Alld 164

(Delivered by Hon'ble V.M. Sahai, J.)

1. This appeal has been preferred by
the plaintiff-appellant Santosh Kumar
alias Tata against the order dated
12.10.2007, passed by Sri Bachchu Singh,
Civil Judge (Senior Division), Ballia in
O.S. No. 276 of 2004, by which adinterim injunction 6C-2 moved by the
plaintiff-appellant has been rejected but
the application 60C-2, moved by the
defendant-respondent Smt. Meena Devi
for the same purpose has been allowed
and the plaintiff-appellant has been
restrained till the pendency of the suit
from interfering in any way with the title
and possession of defendant-respondent in
the property in dispute.

2. We have heard Sri Phaujdar Ral
and Sri V. Singh, learned counsel for the
plaintiff-appellant and Sri Pradeep Kumar
Rai, learned counsel for the respondent.

3. The plaintiff-appellant filed a suit
for injunction on the basis of a Will dated
6.3.2003, alleged to have been executed
by
Shambhoo
Prasad,
husband
of
defendant-respondent regarding his two
immovable properties detailed in the Will,
the copy of which is Annexure-3. These
properties are the houses, one situated in
District Ballia of Uttar Pradesh and
148 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
another in District Thane (Maharashtra).
It has been alleged in the plaint that late
Sambhoo Prasad gave right of ownership
to the plaintiff-appellant by the Will and
the respondent being widow has been
given only right of residence and
maintenance. The suit is being contested
by the respondent on the ground that the
alleged Will is a forged document and her
husband never executed any Will in
favour of plaintiff-appellant who is real
nephew of the deceased Sambhoo Prasad.
A registered Will has been executed in the
year 1976 by deceased Sambhoo Prasad
in favour of defendant-respondent and by
virtue of that Will, the respondent is in
possession of the properties in suit as
owner.
The
plaintiff-appellant
is
a
member of Nagar Palika, Ballia and
misusing his position as such, he got his
name mutated in place of deceased
Sambhoo Prasad in Nagar Palika records.
When the defendant-respondent came to
know about this, she moved application
before the Collector concerned and her
prayer was accepted and mutation order
was set aside. The Collector directed
disposal of mutation application after
giving opportunity to the respondent to be
heard. Against said order, the plaintiffappellant filed Civil Misc. Writ Petition
No. 44119 of 2004 before this Court,
which was dismissed and the order,
passed by the Collector, Ballia was
upheld. Learned trial court considered
each and every aspect of the case and
perused the papers on record and came to
the conclusion that the plaintiff-appellant
has no prima-facie case and rejected his
ad-interim injunction application but
allowed the application of defendantrespondent
and
gave
the
aforesaid
direction.

4. The copy of plaint has been
annexed as Annexurre-1 to the memo of
appeal. A plain perusal of this plaint
shows that the plaintiff-appellant has no
where disclosed execution of Will by
deceased Sambhoo Prasad in favour of
defendant-respondent in the year 1976.
Thus, he has concealed the material fact
and has not come with clean hands.
Before the trial court, the copy of Will in
favour of defendant-respondent had been
filed, that Will is a registered Will as is
evident from the contents of impugned
order. Learned trial court has observed
that when the deceased had already
executed a registered Will in favour of his
wife, that could be replaced by only
another registered Will. He has cited 2000
(91) RD 615 S. Saktivel Vs. M.
Venugopal Pillai and others, in which
the Hon'ble Apex Court has observed that
terms of a registered document can be
altered, varied or rescinded only by
subsequent registered document and not
otherwise. We have perused the aforesaid
judgement. The facts of that case were
different. In that case, a settlement had
arrived between the parties by a registered
deed and later on, terms were changed by
unregistered deed and in that case, the
Hon'ble Apex Court gave the aforesaid
opinion. But as regard Will is concerned,
law is very clear. A Will needs not
necessarily be registered and unregistered
will can also be executed by any person
having right to do so. The registered Will
once executed in favour of some person,
can be cancelled by another unregistered
Will executed in favour of other person,
but there must be cogent reason for the
same. The Will under dispute is subjudice
before
learned
trial
court
and
its
genuineness is to be decided after
evidence. But prima- facie, It appears
unreasonable because once deceased
1 All] Santosh Kumar @ Tata V. Smt. Meena Devi
149
executed registered Will in favour of his
wife what was the occasion to execute
another unregistered Will after a gap of
about 27 years in favour of his nephew
and by subsequent Will only right of
maintenance and residence has been given
to the widow. A person, who had no male
or female issue and who earned money by
own sources and constructed two houses
at different places, could how ignore his
widow by giving property to his nephew.
This is a circumstance, which favours the
defendant-respondent. As regard entries
in the Nagarpalika record are concerned,
it is evident from the order of learned trial
court that the matter is still subjudiced
and mutation record favour of plaintiffappellant has been set aside by the
Collector concerned and the plaintiffappellant could also not get any relief
from the High Court. The possession of
defendant-respondent on the property in
dispute is admitted in the plaint itself.
Therefore, in such circumstances, this
conclusion of learned trial court is quite
reasonable that there is no prima-facie
case in favour of plaintiff-appellant but
definitely it is in favour of defendantrespondent. As regard the balance of
convenience is concerned, that is also got
favour to defendant-respondent being
widow of deceased residing in the house
in dispute. The plaintiff-appellant has no
irreparable loss, if he succeeds in
litigation on the basis of Will, he will get
ownership of the property in dispute, in
which admittedly defendant-respondent
has been given right of residence and
maintenance.

5. Learned counsel for the appellant
has challenged power of learned trial
court to grant ad-interim injunction in
favour of defendant-respondent. He has
contended that in a suit by the plaintiffappellant, the defendant-respondent could
not be granted injunction in her favour by
the learned trial court. But we see no
force in this contention because law is
very clear on the point. In the case of
Dilip Kumar Vs. Chaudhary Ram
Saran Vakeel; 1972 ALJ 379, it has been
clearly held that the court can grant
injunction in favour of defendant under
Section 151 C.P.C. In the case of Shiv
Ram Singh Vs. Smt. Mangara and
others; AIR 1989 Alld. 164, the position
has been further clarified. It has been held
that interim injunction in favour of
defendant can be granted under section
151 Civil Procedure Code 1908 under
inherent power of the court. There is no
limitation under rule 1 and 2 of Order 39
C.P.C for granting injunction in favour of
defendant under inherent power, but it
should be granted in very rare cases and
under exceptional circumstances. This
plea is not acceptable that relief for
injunction cannot be granted in favour of
defendant because no court fee has been
paid by her on the basis of principle of
avoiding multiplicity of proceedings. In
that
case,
the
tenant
had
sought
permission against landlord to carry out
only repair in order to make premises
habitable and the injunction was granted
against the landlord because by granting
injunction, he was not likely to suffer at
all.

6. In view of our above discussions,
we come to the conclusion that while
passing the impugned order, the learned
trial court has acted strictly on the basis of
principles of law and the impugned order
needs no interference in appeal and
consequently, the appeal is summarily
dismissed.
---------
150 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2007

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE R.N. MISRA, J.

Civil Misc. Writ Petition No. 59971 of 2007

Prahlad Kumar Gupta and another

...Petitioners
Versus
The State of U.P. & others...Respondents

Counsel for the Petitioners:
Sri Pradip Kumar
Sri Ashutosh Srivastava

Counsel for the Respondents:
S.C.

Constitution of India, Art. 226-Order
passed by district Consumer Forumchallenged-petitioners running business
of
deposit
of
money
on
interestcomplainant invested huge money F.D.
issued-but on production of receiptspetitioner's
company
denied
the
payment-Consumer Protection Act 1986provides
complete
code-can
not
be
interfered by writ court.

Held: Para 9

Learned counsel for the petitioner has
argued
.that
business
run
by
the
petitioners could not be termed as
Banking, but we do not agree with this
contention. When the petitioners and
their
Companies
were
indulging
in
getting
money
deposited
by
the
customers on interest and the F.D.R
were issued, they were duty bound to
make
payments
and
such
type
bf
transactions definitely terms as Banking.
Case law discussed:
2005 (3) AWC 4110, AIR 1994 Kerala-19

(Delivered by Hon'ble V.M. Sahai, J.)

1. By invoking jurisdiction of this
Court, under Article 226 of Constitution
of India through this writ petition, the
petitioners have challenged jurisdiction of
District Consumer Forum Budaun in
passing the order dated 2.2.2007 in
Consumer Complaint No. 306 of 2002, by
which the petitioners have been ordered to
pay the amount of Fixed Deposit Receipts
in favour of Km. Pragya Bharti, Rohit
Kumar
and
Akshey
Kumar,
the
complainants of the case and some other
persons named in annexure-3.

2. We have heard learned counsel
for the petitioners, learned Standing
Counsel for respondent nos. 1 and 2 and
learned counsel for respondent no.3.

3. The main grievance of the
petitioners is that District Consumer Form
(hereinafter called as Forum) has no
jurisdiction to intervene in such matters,
in which payment of money is involved.
The complainants have remedy of filing
civil suit for recovery of money, if any.

4.

Surprisingly
enough,
the
petitioners have not made party to the
aforesaid complainants, in whose favour
orders have been passed. It appears from
the contents of writ petition that the
Forum has passed the orders on different
dates in favour of the persons named in
the list Annexure-3 to the writ petition
and recovery proceedings are being
initiated by the respondents to execute
those orders. The petitioners were running
business of deposit of money on interest
in the name and style of M/s Godavari
Hire Purchase Pvt. Ltd, M/s Godawari
Installments, Pvt. Ltd, M/s Bros Hire
Purchase Pvt. Ltd and M/s Raj Financers