# Smt. Bachchi Devi v. 3rd Addl. District Judge Balrampur & Ors

- **Citation:** (2022) 5 ILRA 1364
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-08
- **Case number:** Criminal Revision No. 101 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-bachchi-devi-v-3rd-addl-district-judge-balrampur-ors-48505
- **Pages:** 10

## Headnote

general rule, the same powers as are open to
the original authority or court from whose
decision the appeal is preferred and a court of
appeal has no fetters on it to decide all
questions of law and fact which crop up in the
case but ordinarily, a court of 11 appeal will not
tend to interfere with the exercise of discretion
by the lower court and substitute for it, its own
discretion unless of course, it is found by the
court
of
appeal
that
the
original
court
misdirected itself on any question of law or it
failed to consider the relevant factors governing
the exercise of discretion or its discretion is
otherwise vitiated by reason of mis-construction
of any statutory provision or on account of
misreading of any evidence on record.

B.
The
relief
of
interlocutory
mandatory
injunctions can be granted when
(1).The plaintiff has a strong case for trial. That
is, it shall be of a higher standard than a prima
facie case that is normally required for a
prohibitory injunction. (2) It is necessary to
prevent irreparable or serious injury which
normally cannot be compensated in terms of
money. (3) The balance of convenience is in
favour of the one seeking such relief."

C. Supervisory jurisdiction conferred upon the
High Court under Article 227 is confined only to
see whether an inferior court or Tribunal has
proceeded
within
the
parameters
of
its
jurisdiction. In its exercise of jurisdiction under
Article 227, the High Court does not act as
Tribunal and it is not open for it to review the
order or reassess the evidence upon which the
Trial Court has passed an order.
D. the grant of mandatory injunction is not
prohibited in all cases if a clear prima facie
material is placed which justifies a finding that
5 All. Smt. Bachchi Devi Vs. 3rd Addl. District Judge Balrampur & Ors.
1365
status quo may be altered by one of the parties
if the order of mandatory injunction is not
given. It has been observed that an ad-interim
mandatory injunction can also be given on
strong circumstances so as to protect the rights
and interest of the parties and so as not to
frustrate their rights regarding mandatory
injunction. Such interim relief can be granted if
the Court is satisfied that withholding of it would
prick the conscience of the Court and do
violence to the sense of justice, resulting in
injustice being perpetuated throughout the
hearing and at the end the Court would not be
able to vindicate the cause of justice.

Petition disposed of. (E-12)

List of Cases cited:-

## Text

1364 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate
may
have
imposed
other
conditions which it thinks necessary.
Learned Magistrate has failed to exercise
his jurisdiction properly. The learned
revisional
court
has
also
failed
to
appreciate the facts and law on the point so
both the orders are not justified and are
liable to be set-aside.

13. The petitions Under Article 227 of
the Constitution of India are hereby
allowed.
The
impugned
order
dated
8.7.2021 passed by C.J.M. Bulandshahar in
Case Crime No. 271 of 2021 State Vs.
Abhishek Agarwal, under section 420 IPC
and
11/12
U.P
Sheera
Niyantran
Adhiniyam, 1964, PS. Kotwali Dehat,
District Bulandshahar and order dated
17.9.2021 passed by Additional Session
Judge, Court No. 8. Bulandshahar in
Criminal Revision No. 101 of 2021
Abhishek Agarwal Vs. State of UP are
hereby set-aside. The learned C.J.M.
Bulandshahar is directed to release the
molasses
in
question
in
favour
of
petitioners after taking personal bonds and
one surety bond of adequate amount, The
learned Magistrate may got the value of the
molasses assessed by any competent
authority and fix the amount of personal
bond and surety bond accordingly and may
also impose other conditions he deems just
and necessary.
----------
(2022)05ILR A1364
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.04.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Matters U/A 227 No. 33492 of 2019

Smt. Bachchi Devi ...Petitioner
Versus
3rd Addl. District Judge Balrampur & Ors.
 ...Respondents

Counsel for the Petitioner:
Virendra Mishra, Shraddha Mishra

Counsel for the Respondents:
Mohd. Ali

A. In an Appeal unless the statute restricts the
power of the Appellate Court, it has, as a
general rule, the same powers as are open to
the original authority or court from whose
decision the appeal is preferred and a court of
appeal has no fetters on it to decide all
questions of law and fact which crop up in the
case but ordinarily, a court of 11 appeal will not
tend to interfere with the exercise of discretion
by the lower court and substitute for it, its own
discretion unless of course, it is found by the
court
of
appeal
that
the
original
court
misdirected itself on any question of law or it
failed to consider the relevant factors governing
the exercise of discretion or its discretion is
otherwise vitiated by reason of mis-construction
of any statutory provision or on account of
misreading of any evidence on record.

B.
The
relief
of
interlocutory
mandatory
injunctions can be granted when
(1).The plaintiff has a strong case for trial. That
is, it shall be of a higher standard than a prima
facie case that is normally required for a
prohibitory injunction. (2) It is necessary to
prevent irreparable or serious injury which
normally cannot be compensated in terms of
money. (3) The balance of convenience is in
favour of the one seeking such relief."

C. Supervisory jurisdiction conferred upon the
High Court under Article 227 is confined only to
see whether an inferior court or Tribunal has
proceeded
within
the
parameters
of
its
jurisdiction. In its exercise of jurisdiction under
Article 227, the High Court does not act as
Tribunal and it is not open for it to review the
order or reassess the evidence upon which the
Trial Court has passed an order.
D. the grant of mandatory injunction is not
prohibited in all cases if a clear prima facie
material is placed which justifies a finding that
5 All. Smt. Bachchi Devi Vs. 3rd Addl. District Judge Balrampur & Ors.
1365
status quo may be altered by one of the parties
if the order of mandatory injunction is not
given. It has been observed that an ad-interim
mandatory injunction can also be given on
strong circumstances so as to protect the rights
and interest of the parties and so as not to
frustrate their rights regarding mandatory
injunction. Such interim relief can be granted if
the Court is satisfied that withholding of it would
prick the conscience of the Court and do
violence to the sense of justice, resulting in
injustice being perpetuated throughout the
hearing and at the end the Court would not be
able to vindicate the cause of justice.

Petition disposed of. (E-12)

List of Cases cited:-

1. K.Vs Muralidhar Vs K.Vs Ananda Rao & ors.,
2016 (16) SCC 109

2. Rajesh Jaiswal & anr. Vs Amit Shyam & anr.,
2012 SCC OnLine All 4007

3. Dr. Chandra Deo Tyagi Vs A.D.J., Court 10
No.1, Meerut & ors., 2020 (7) ADJ 216

4. Shri Ram Singh & anr. Vs Special Judge,
E.C. Act, A.D.J., Ballia & ors., AIR 1993 ALL
236

5. Metro Marins & anr. Vs Bonus Watch Co. (Pvt)
Ltd. & ors., 2004 (7) SCC 478

6. Dorab Cawasji Warden Vs Coomi Sorab
Warded, 1990 (2) SCC 117

7. Ashok Kumar Bajpai Vs Dr. (Smt.) Ranjana
Bajpai, 2003 SCC OnLine ALL 1296

8. Banshi Lal Vs Radhey Shyam, 2013 (31) LCD
1530

9. Dilbagrai Punjabi Vs Sharad Chandra, AIR
1988 SC 1858

10. Jagdish Singh Vs Natthu Singh, 1992 (1)
SCC 647

11. Raj Kumar Bhatia Vs Subhash Chander
Bhatia 2018 (2) SCC 87

12. Sadhana Lodh Vs National Insurance Co.
Ltd., 2003 (3) SCC 524

13. Pepsico India Holding Pvt. Ltd. Vs Krishna
Kant Pandey, 2015 (4) SCC 270

14. Chandavarka Sita Ratna Rao Vs Ashalata S.
Guram, 1986 (4) SCC 4447

15. Waryam Singh Vs Amarnath, AIR 1954 SC
215

16. Nagendra Nath Bora Vs Commissioner of
Hills Division, AIR 1958 SC 398.

17. Hammad Ahmed Vs Abdul Majeed & ors.,
2019 (14) SCC 1
(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. This petition has been filed praying
for setting aside the order dated 25.10.2019
and the order dated 02.07.2019 passed by
the learned Appellate Court in Civil Appeal
no.02 of 2014 and the order dated
28.01.2014 passed by learned Trial Court in
Regular Suit No.478 of 2011.

2. Heard Sri Virendra Mishra, learned
counsel for the petitioner and Sri Md. Ali,
learned counsel for the respondent no.3.

3. The case set up by the petitioner
before this Court is that as per the pedigree
given in paragraph-3 of the petition, one
Jagannath was the owner of two houses
situated adjacent to each other. He had two
sons, namely, Chhailbihari and Lalta
Prasad, both are now dead. Chhailbihari
had one son Ram Pratap, who has been
arrayed as respondent no.3 and Dwarka
Prasad also had one son who was
differently abled and died a long time ago
and the petitioner is the widow of Dwarka
Prasad. There are two houses situated
adjacent to each other. The house of the
1366 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner is existing in a single storey in a
dilapidated condition, whereas the house of
the respondent no.3 situated next to it is
double storey and has a shop also in it.
Whereas the house of the respondent no.3
has all basic amenities like electricity
connection and water pipeline, the house of
the petitioner is in a pitiable condition with
no electricity connection or water pipeline.
She being a widow, is somehow surviving
in the said house. The respondent no.3
taking the benefit of her old age and being
a stamp vendor in the Civil Court and
aware of court procedure, tried to grab her
house by instituting a Regular Suit for
permanent injunction against the petitioner
on false allegation that he is the exclusive
owner in the possession of the house in
dispute i.e. the house which is adjacent to
his own house and in dilapidated condition
in which the petitioner lives, alleging that
the father of the plaintiff Chhailbihari and
the husband of the defendant Dwarka
Prasad were real brothers and the ancestral
house which was situated near Cooperative
Seed Godown in front of Hatan road had
been left by the father of the plaintiff in
favour of his brother i.e. the husband of the
defendant has he too was differently able
and feeble minded.

4. Since the husband of the petitioner
and her son were both feeble minded, it
was alleged that the plaintiff brought them
in the his house and the defenant sold the
ancestral house and started residing with
the plaintiff. Thereafter the plaintiff got
allotted the House no.3/26 in favour of
defendant/ petitioner in Kashiram Shahri
Awas
Yojana
and
accordingly
the
defendant/ petitioner shifted in the said
house along with her son who died on
12.08.2011. It has been submitted that the
petitioner/ defendant was shown to be
residing at the house situated in Kashiram
Shahri Awas Yojana and not in Mohalla
Shubhash Nagar by way of an amendment
in the plaint which was allowed on
02.07.2019, which order has also been
challenged
in
this
petition.
Such
amendment was carried out only to avoid
proper service of the plaint in Regular Suit
being made upon her. It was alleged in the
plaint that after the death of her son, the
defendant/ petitioner tried to sell the house
in dispute in favour of a muscleman after
taking forcible the possession from the
plaintiff, accordingly necessity arose to file
the Suit.

5. It has been submitted by Sri
Virendra Mishra, learned counsel for the
petitioner that initially the respondent no.3
had shown the correct address of the
petitioner i.e. the house in dispute, however
mischievously the said plaint was amended
and she was shown to have been residing at
the house situated at Kashiram Shahri Awas
Yojana. This was only to enable the
plaintiff to manage that the notice of the
Regular Suit be not served upon the
petitioner and he may be able to obtain ex
parte injunction. It has been submitted that
after notice was issued, since the petitioner
could not be served, the same was
published in some newspaper and such
condition was found to be sufficient by the
Trial Court and initial date was fixed as
17.04.2012 for considering the application
for temporary injunction.

Later on an application was
moved on 26.03.2012 by the plaintiff for
preponing the date fixed by the Trial Court.
The date was preponed and fixed for
07.02.2012 with a direction to the plaintiff
to inform the defendant of such preponing
of the date. However, no intimation
whatsoever regarding change of date was
given to the defendant/ petitioner and
5 All. Smt. Bachchi Devi Vs. 3rd Addl. District Judge Balrampur & Ors.
1367
accordingly learned Trial Court when it
took up the matter on 07.04.2012 while
observing that the defendant was not
present restrained the defendant/ petitioner
from selling the house in dispute till the
next date of listing. The defendant/
petitioner is illiterate, old and ailing lady
and she was also mentally disturbed in
2011-2012 due to the death of her young
son. Any
publication
made
in
any
newspaper could not have been read by her
and she did not have any information of the
pendency of the said Regular Suit. Anyhow
when she came to know of the ad-interim
injunction dated 07.04.2012, she appeared
through the counsel and filed written
statement and detailed objections to the
application for temporary injunction.

6. It was stated in the objections and
in the written statement that about 40 years
ago, a partition/ family settlement has taken
place and the house in dispute fell in the
share
of
the
husband
of
the
petitioner/defendant, whereas the portion
on the eastern side fell in the share of the
father of the plaintiff. Since then both the
parties
were
in
possession
of
their
respective portions of the house and the
plaintiff is not the owner, nor in possession
of the house as shown in the letters A, B, C
& D and had no right to file the Suit for
permanent
injunction.
The
defendant/
petitioner also filed photocopies of ration
card, receipts of house tax etc. to prove that
she had been the owner in possession of the
disputed house.

7. Learned Trial Court however
passed an order on 28.01.2014 allowing the
application under Order 39 Rule 1 C.P.C.
moved by the plaintiff by going much
beyond the pleadings on record and also the
final prayer made in the Suit. By this order,
the Trial Court not only restrained the
petitioner from selling the property in
dispute but also restrained the petitioner
from using the same for residing therein.
There was no finding on record that the
petitioner was not in possession of the
house and that she is not residing therein,
nor she is the legal owner thereof.

8. Learned counsel for the petitioner
has further submitted that since the order
dated 28.01.2014 was completely against
the record and much beyond the final relief
that was claimed by the plaintiff in the
Regular Suit itself, the defendant/ petitioner
filed Misc. Civil Appeal under Order 41
Rule 1 C.P.C. registered as Misc. Civil
Appeal No.02 of 2014. During the
pendency of the Appeal, an application was
filed under Order 41 Rule 27 by the
defendant/ petitioner with a request for
admitting certain documents/ papers in
additional evidence to prove that the
disputed house infact is ancestral and was
not the self-acquired property of the father
of the plaintiff but had been left by way of
family settlement in the name of her dead
husband by her father-in-law. She filed a
copy of the sale deed dated 17.10.1967
where Jagannath, her father in law had
executed sale deed of the property situated
opposite
Cooperative
Seed
Go-down
towards Hatan Road. It has been argued
that when the house/ property situated near
Cooperative Seed godown has already been
sold out in 1967, there was no question of
such house being left in favour of her dead
husband Dwarka Prasad by his father
Jagannath. The Appellate Court allowed
this application on 19.11.2018 and admitted
the document in additional evidence.

The plaintiff filed an Appeal before
the Appellate Court for amendment of the
plaint by which he tried to change his stand.
Such application was erroneously allowed on
1368 INDIAN LAW REPORTS ALLAHABAD SERIES
02.07.2019 which order has also been
challenged before this Court. By the order
impugned dated 25.10.2019, the Appellate
Court has rejected the Appeal filed by the
petitioner and affirmed the order passed by
the Trial Court dated 28.01.2014.

9. Learned counsel for the petitioner has
read out the operative portion of the order
dated 28.01.2014 passed by the learned Trial
Court, wherein the learned Trial Court has
observed that prima facie the plaintiff had
been able to show that he is the owner and in
possession of the house in question and
therefore balance of convenience and the
question of irreparable loss has also been
shown to be in favour of the plaintiff. The
application for temporary injunction was
allowed with a direction to the defendant/
petitioner that during the pendency of the
Suit, she should not interfere in the plaintiff's
peaceful possession of the house situated at
Subhash Nagar, Pargana and Tehsil Utraula,
District Balrampur, shown in the plaint with
the letters A, B, C & D by taking forcibly the
possession thereof or by selling it off.

10. Learned counsel for the defendant/
petitioner has read out the operative portion
of the order passed by the Appellate Court
on 25.10.2019 rejecting the Appeal filed by
the defendant/ petitioner. The Appellate
Court found that notice had not been served
as the service report initially stated that she
lived currently in House No.1/26 Kashiram
Shahri Awas Yojana and in another service
report, the Process Server has stated that the
defendant had refused to accept the notice.
After publication of notice, the defendant/
petitioner had appeared and had showed her
residence as Mohalla Subhash Nagar, Hatan
Road, Pargana Utraula, District Balrampur.

11. Learned counsel appearing for the
petitioner has pointed out that the application
of the petitioner under Order 41 Rule 27
having been allowed and the additional
evidence having been admitted, a duty was
cast upon the Appellate Court to consider
such additional evidence and give its finding
specifically on the points raised in argument
on the basis of such additional evidence. He
has referred to the judgment rendered by
Hon'ble Supreme Court in K.V. Muralidhar
Vs. K.V. Ananda Rao and others, 2016 (16)
SCC 109, and the judgment rendered by a
Coordinate Bench in Rajesh Jaiswal and
another Vs. Amit Shyam and another, 2012
SCC OnLine All 4007 and the judgment
rendered by another Coordinate Bench in Dr.
Chandra Deo Tyagi Vs. Additional District
Judge, Court No.1, Meerut and others, 2020
(7) ADJ 216, where similar observations have
been made that not only the additional
evidence can be filed in an Appeal against a
judgment and decree, but also in an Appeal
against the order passed on an interlocutory
application; if such additional evidence is
allowed to be filed and taken on record then
the same should be considered and specific
finding be recorded thereon.

12. Learned counsel for the petitioner
has referred to the judgment rendered by
this Court in Shri Ram Singh and another
Vs. Special Judge, E.C. Act, Additional
District Judge, Ballia and others, AIR 1993
ALL
236,
where
this
Court
after
considering the scope of judicial review
under Article 226 and 227 has also
considered the scope of Appeal under
Order 43 Rule 1 against an order passed on
an interlocutory order under Order 39 Rule
1 C.P.C. It has been held that in an Appeal
unless the statute restricts the power of the
Appellate Court, it has, as a general rule,
the same powers as are open to the original
authority or court from whose decision the
appeal is preferred and a court of appeal
has no fetters on it to decide all questions
5 All. Smt. Bachchi Devi Vs. 3rd Addl. District Judge Balrampur & Ors.
1369
of law and fact which crop up in the case
but ordinarily, a court of appeal will not
tend to interfere with the exercise of
discretion by the lower court and substitute
for it, its own discretion unless of course, it
is found by the court of appeal that the
original court misdirected itself on any
question of law or it failed to consider the
relevant factors governing the exercise of
discretion or its discretion is otherwise
vitiated by reason of mis-construction of
any statutory provision or on account of
misreading of any evidence on record.

13. Learned counsel for the petitioner
has placed reliance upon the judgment
rendered by Supreme Court in Metro
Marins and another Vs. Bonus Watch Co.
(pvt) Ltd. and other, 2004 (7) SCC 478,
where in paragraph-9, the Court had
observed
that
an
interim
mandatory
injunction
can
be
granted
only
in
exceptional cases as noted in the judgment
rendered by it in Dorab Cawasji Warden
Vs. Coomi Sorab Warded, 1990 (2) SCC
117. In Dorab Cawasji Warden (supra), the
Supreme Court has observed in paragraph
16 as follows:-

"16. The relief of interlocutory
mandatory injunctions are thus granted
generally to preserve or restore the status quo
of the last non-contested status which
preceded the pending controversy until the
final hearing when full relief may be granted
or to compel the undoing of those acts that
have been illegally done or the restoration of
that which was wrongfully taken from the
party complaining. But since the granting of
such an injunction to a party who fails or
would fail to establish his right at the trial
may cause great injustice or irreparable
harm to the party against whom it was
granted or alternatively not granting of it to a
party who succeeds or would succeed may
equally cause great injustice or irreparable
harm, courts have evolved certain guidelines.
Generally stated these guidelines are:

(1) The plaintiff has a strong case
for trial. That is, it shall be of a higher
standard than a prima facie case that is
normally
required
for
a
prohibitory
injunction.

(2) It is necessary to prevent
irreparable
or
serious
injury
which
normally cannot be compensated in terms
of money.

(3) The balance of convenience is
in favour of the one seeking such relief."

14. Learned counsel for the petitioner
has referred to the judgment rendered by
this Court in Ashok Kumar Bajpai Vs. Dr.
(Smt.) Ranjana Bajpai, 2003 SCC OnLine
ALL 1296 , and paragraph 14 to 17 thereof
which mainly consider the judgements
relating to interim relief granted in writ
jurisdiction by the High Court which
amounts to final relief and inadmissibility
thereof and is of not much relevance to the
controversy in hand.

15. Learned counsel for the petitioner
has also referred to another judgment
rendered by this Court in Banshi Lal Vs.
Radhey Shyam, 2013 (31) LCD 1530,
where this Court has observed that even in
the Second Appeal, interference can be
made in findings of fact when material or
relevant evidence is not considered, which
if considered, would have led to opposite
conclusion and where a finding has been
recorded by the Appellate Court by placing
reliance upon in-admissible evidence which
if would have been omitted, an opposite
conclusion would have been possible.

16. Learned counsel for the petitioner
has further placed reliance upon Dilbagrai
Punjabi Vs. Sharad Chandra, AIR 1988 SC
1370 INDIAN LAW REPORTS ALLAHABAD SERIES
1858, paragraph-5 thereof which also
relates to the Second Appeal and there is
reference to the arguments made by the
learned counsel appearing on behalf of the
respondent which this Court does not
consider necessary to refer to in detail as
they are not of much relevance to this case
filed under Article 227 of the Constitution.

17. Learned counsel for the petitioner
has placed reliance upon the judgment
rendered by Supreme Court in Jagdish
Singh Vs. Natthu Singh, 1992 (1) SCC 647,
and
paragraph-10
thereof
where
the
Supreme Court has made observations
regarding jurisdiction of the High Court to
re-appreciate the evidence in a Second
Appeal. However such observations are
unnecessary to be referred to in detail in
view of the fact and circumstances of this
case.

18. It is the case of the respondent as
argued by Md. Ali that the petitioner is the
paternal Aunt/ Chachi of the respondent
no.3. At the time when the father of the
respondent no.3 was alive, a family
settlement had taken place in which the
ancestral house situated at Hatan road
opposite Cooperative Seed godown had
been given to the husband of the petitioner
who was feeble minded and incapable of
earning a livelihood on his own. The father
of the respondent no.3 had shifted to a
house that he had bought from his own
earning as stamp vendor in Mohalla
Subhash Nagar at Hatan road in Utraula
town. On the said property, he had
constructed two shops and was also
residing. The house was recorded in the
name of the father of the respondent no.3 in
the municipality records and he had been
paying water tax and electricity bill etc.
before his death and after his death the
respondent no.3 came into possession of
the entire house. Since the petitioner who
was his Chachi and her husband Late
Dwarka Prasad were living penurious
condition at Hatan road in the ancestral
house, he used to take care of both his
Chacha and Chachi and their feeble minded
son, and after the death of his Chacha, he
had brought his Chachi and her son to the
house situated at Subhash Nagar. After his
family grew in size, there was a lack of
space and therefore the respondent no.3
made great effort in getting allotted a
separate residential house under Kashiram
Shahri Awas Yojana in the name of his
Chachi where she went to live in 2010
along with her son. When her son died
there was no one to look after her and then
he brought his Chachi back to his house in
Subhash Nagar but she appeared to have
changed her mind and with malafide intent
wanted to grab the house in which the
respondent was living with his family
therefore,
for
the
said
purpose
she
approached land mafia and anti-social
elements with the intention to forcibly grab
the possession of the house in question and
to sell it off behind the back of respondent
no.3. Being apprehensive of being thrown
out of his own house, the respondent no.3
filed a Suit for permanent injunction along
with
an
application
for
temporary
injunction.

19. Notice was initially tried to be
served through registered post and process
server of the Court upon the petitioner but
contradictory
reports
were
returned
therefore substituted service was affected
and such service was found sufficient on
the defendant/ petitioner. The defendant
filed objections to the application for
temporary injunction and written statement
in the said Suit which was duly considered
by the Trial Court and the learned Trial
Court after considering the facts and
5 All. Smt. Bachchi Devi Vs. 3rd Addl. District Judge Balrampur & Ors.
1371
documentary evidence placed on record
came to the conclusion that the plaintiff i.e.
the respondent no.3 had been able to
establish a prima-facie case in his favour
for grant of interim injunction. Hence the
order
dated
28.01.2014
was
passed
injuncting the defendant/ petitioner from
interfering and forcibly taking possession
of the house in question or trying to sell it
off during the pendency of the Suit. The
petitioner thereafter filed an Appeal and
again
documentary
evidence
was
considered by the Appellate Court and it
found no perversity or illegality in the order
dated 28.01.2014 and eventually rejected
the Appeal by its order dated 25.10.2019.

20. It was found on the detailed
examination of evidence that the defendant/
petitioner did not dispute at any stage the
contention of the plaintiff that a separate
house was allotted to her in Kashiram
Shahri Awas Yojana finding her to be
homeless and destitute. The Appellate
Court also took into account the agreement
to sell made out allegedly by the defendant/
petitioner in favour of one Taufeeq Ahmed
to sell off the house in dispute for
consideration of Rs.4 lakhs and receipt of
advance of Rs.1000/- from him. The
Appellate Court observed that in view of
such evidence of avoiding of service of
notice, and then appearing after publication
of the same in newspaper, and allotment of
separate house at Kashi Ram Shahri Awas
Yojana finding her to be homeless and the
agreement to sell, it was evident that the
plaintiff was right in his submission before
the Trial Court that being homeless she
tried to take forcibly the possession of the
house in dispute, and had also intended to
sell it off to a third person.

21. The Appellate Court thus found
that a prima facie case had indeed been
made out by the plaintiff against the
defendant and with regard to irreparable
loss also the Appellate Court found that the
apprehension of the plaintiff of being
deprived of the house in question and the
intention of the defendant to sell it off had
not been suitably controverted by the
defendant.

22. The Appellate Court has referred
the agreement to sell dated 28.08.2013 and
other documentary evidence filed by the
plaintiff
which
was
not
specifically
controverted by the defendant, and it also
referred to balance of convenience being in
favour of the plaintiff as had been shown
on the basis of receipts issued by the
Municipality that the house in question was
recorded in the name of his father and he
had been paying house tax, water tax,
electricity tax, etc. since much before the
cause of action for institution of Suit arose
in 2011, whereas the defendant had
produced receipts which were much of later
date i.e. of the year 2013 onwards. After
referring to the evidence considered by the
learned Trial Court, the Appellate Court
found no good ground to interfere in the
interim injunction granted by the Trial
Court on 28.01.2014 and affirmed the same
by its order dated 25.10.2019.

23. Learned counsel for the respondent
has placed reliance upon Raj Kumar Bhatia
Vs. Subhash Chander Bhatia 2018 (2) SCC
87, and paragraph-12 thereof, where the scope
of interference by the High Court under Article
227 of the Constitution has been considered by
placing reliance upon Sadhana Lodh Vs.
National Insurance Company Ltd., 2003 (3)
SCC 524, where it was held that supervisory
jurisdiction conferred upon the High Court
under Article 227 is confined only to see
whether an inferior court or Tribunal has
proceeded within the parameters of its
1372 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction. In its exercise of jurisdiction
under Article 227, the High Court does not act
as Tribunal and it is not open for it to review
the order or reassess the evidence upon which
the Trial Court has passed an order.

24. Learned counsel for the respondent
no.3 has also placed reliance upon Pepsico
India Holding Private Limited Vs. Krishna
Kant Pandey, 2015 (4) SCC 270, and
paragraph-14
thereof
where
similar
observations have been made by the Supreme
Court by considering the earlier binding
precedents such as Chandavarka Sita Ratna
Rao Vs. Ashalata S. Guram, 1986 (4) SCC
4447 and Waryam Singh Vs. Amarnath, AIR
1954 SC 215 and Nagendra Nath Bora Vs.
Commissioner of Hills Division, AIR 1958 SC
398.

25. Learned counsel for the respondent
no.3 has also placed reliance upon Hammad
Ahmed Vs. Abdul Majeed and others, 2019
(14) SCC 1, and paragraph-57 and 58 thereof,
where it has been observed that the grant of
mandatory injunction is not prohibited in all
cases if a clear prima facie material is placed
which justifies a finding that status quo may
be altered by one of the parties if the order of
mandatory injunction is not given. It has been
observed that an ad-interim mandatory
injunction can also be given on strong
circumstances so as to protect the rights and
interest of the parties and so as not to frustrate
their rights regarding mandatory injunction.
Such interim relief can be granted if the Court
is satisfied that withholding of it would prick
the conscience of the Court and do violence
to the sense of justice, resulting in injustice
being perpetuated throughout the hearing and
at the end the Court would not be able to
vindicate the cause of justice.

26. This Court having heard the
counsel for the parties has also perused the
order impugned. It is evident that both the
courts below have considered documentary
evidence filed by the plaintiff which
included receipts starting from the year
1983 onwards of various years till 2009 i.e.
before the Suit was filed in 2011. They
have also considered the specific case of
the plaintiff that a separate house under
Kashiram Shahri Awas Yojana had been
allotted to the defendants in which due
enquiry was held finding the defendant to
be homeless which specific case was not
controverted by the defendant in any of her
affidavits. Learned Trial Court as well as
the Appellate Court has also considered the
agreement to sell made out on 28.08.2013
after the order of the maintenance of status
quo was passed by the Trial Court at the
stage of ad-interim ex parte hearing of the
said Suit, and after the defendant had
appeared before the Trial Court and filed
her objections and written statement. The
trial court as well as the Appellate Court on
the basis of evidence led by the parties
came to the conclusion that prima facie
plaintiff was residing in the house built by
his father and that the defendant was trying
to sell it off and this apprehension was
fortified by agreement to sell made out
after the order by the Trial Court for
maintenance of status quo passed.

27. In this fact and circumstances, this
Court does not find it appropriate to
interfere in the orders impugned in this
petition.

28. However, since the Suit has been
pending since 2011 and evidence has been
led by both the parties therein and even
additional evidence has been filed which
has been taken on record by the Appellate
Court, the Trial Court shall try and dispose
of the Suit on its merits as expeditiously as
possible.
5 All. Distributors India, (South) Vs. Union of India & Ors.
1373

29. Any observations made by this
Court in this order have only been made to
come
to
the
conclusion
regarding
justifiability of the orders impugned passed
by the Trial Court and the Appellate Court
and such observations shall not prejudice
the rights of any of the parties in the Suit
which is yet to be decided on merits by the
competent court.

30. This petition is accordingly
disposed of.
----------
(2022)05ILR A1373
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.05.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Civil Misc. Review Application No. 116 of 2022

Distributors India, (South) ...Applicant
Versus
Union of India & Ors. ...Opp. Parties

Counsel for the Applicant:
Shailesh Verma

Counsel for the Opp. Parties:
A.S.G.I., Manish Misra

A. Civil Law - Civil Procedure Code,
1908 - ORDER 47 RULE 1 - It is settled
law that review cannot be treated as an
appeal and a re-hearing of the matter is not
allowed in the name of a review of the
judgment. Review of a judgment can be
sought only the ground that it suffers from
an "error apparent on the face of the
record". But error on the face of record must
be such an error which must strike one on
mere looking at the record and would not
require any long-drawn process of reasoning
on the points where there may conceivably
be two opinions.
B. Power of review may not be exercised on the
ground that the decision was erroneous on
merits.

C. Power of review can also be exercised for
any sufficient reason which is wide enough to
include a misconception of fact or law by a court
or even an advocate.

D. The power of review can be exercised for
correction of a mistake but not to substitute a
view. Such powers can be exercised within the
limits of the statute dealing with the exercise of
power. The review cannot be treated like an
appeal in disguise.

Application dismissed. (E-12)

List of Cases cited:-

1. Raymond Woollen Mills Ltd. Vs I.T.O. (1999)
236 ITR 36 (SC); Arun Gupta Vs U.O.I., (2015)
371 ITR 394 (AII)

2. Phool Chand Bajrang Lal Vs ITO, (1993) 4
SCC 77; Srikrishna (P) Ltd. Vs ITO, (1996) 9
SCC 534

3. Meera Bhanja Vs Nirmala Kumari Choudhury,
(1995) 1 SCC 170

4. Perry Kansagra Vs Smriti Madan Kansagra,
(2019) 20 SCC 753

5. Srikrishna (Pvt.) Ltd. Vs I.T.O., (1996) 9 SCC
534

6. Aventis Pharma Ltd. Vs ACIT, (2010) 323 ITR
570 (Bom)

7. Arun Gupta Vs U.O.I., (2015) 371 ITR 394
(All)

8. United Electrical Co. Ltd. Vs Commissioner of
Income Tax, (2002) 258 I.T.R. 317
(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J. & Hon'ble Subhash
Vidyarthi, J.)

1. Heard Shri Desh Deepak Chopra,
Senior Advocate, assisted by Sri Shailesh