IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting) (Chapter VIII, Rule 32 (2) (b)) Description of Case WPMS No. 422 of 2003. decided on 10-07-2003 Smt. Arpana Vaish Vs. U.P. Finance Corporation & others A.F.R. (Approved for reporting) ------------------------------------- Not approved for reporting Date 10-07-2003 Initials of Judge Note- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for Signature. COURT NO.6 HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO.422 OF 2003 CIVIL SIDE Smt. Arapana Vaish …..… PEVISIONIST Versus U.P. Finance Corporation & others………… RESPONDENTS Hon’ble Rajesh Tandon J. This writ petition has been filed challenging inter alia order dated 12.6.2002 passed by the Civil Judge( Senior Division), Dehradun and order dated 7.3.2003 passed by the District Judge, Dehradun. The averment of the petitioner in the writ petition are that he has purchased property bearing khasara no.415 area 469.65 Sq. Mt. Situated at village Kanwali, Pargana Kendriydun, District Dehradun and sale deed was executed on 31.10.2000. It is alleged that the property was purchased by the petitioner from a registered co-operative society namely Pack Well Print Industrial Co-operative Society Ltd. The property was duly transferred by the Society and he alleged that he is in possession of the same since the date of sale deed. In paragraph 10 of the writ petition it was stated that on 8.6.2002 respondent came at the site of the property and tried to interfere in the possession of the petitioner. Therefore, the petitioner has filed a suit being Suit No.439 of 2002 praying for permanent injunction restraining the respondent from interfering in the possession of the petitioner. The petitioner also filed an application for interim injunction under Order 39 Rule 1 C.P.C. The trial Court while considering the prayer of the petitioner found prima facie case and issued notice to the respondent. The Court passed interim order dated 12.6.2002 and a condition was imposed that the injunction will remain operative if the property is not mortgaged with the Finance Corporation. The trial court has also directed for compliance of the provision of Order 39 Rule 3 C.P.C. As would appear from the order passed by the Civil Judge (SD) dated 13.6.2002 that the application 7-C is still pending and has not been disposed of. It appears that the plaintiff has filed an appeal being appeal no.72 of 2002 before the District Judge, Dehradun. The appellate court vide his order dated 7th March 2003 has dismissed the appeal and sent the record of the case to the Court below for proceeding further in the matter. Aggrieved by orders passed by the court below the present writ petition has been filed. Heard Sri B.P. Nautiyal counsel for the petitioner and Sri Naresh Pant counsel for the Finance Corporation as well as Sri N.C. Gupta, Standing counsel for the State. A perusal of the order passed by the Civil Judge (SD) shows that the interim injunction was only granted on the applications filed by the petitioner and the application 7-C has not yet been disposed of. The appellate court has also observed as under:- The record of the court below shows that the apposite parties have already filed the objections 17-C along with an affidavit 18-C against the application 7-C and the same has yet to be decided by the court below. It is, therefore quite clear that the Court below has to decide the application 7-C filed by the plaintiff/ appellant before it is yet to be decided on merits.” The learned District Judge while deciding the appeal has also noticed the arguments of the counsel for the petitioner to the following effect: “The learned counsel for the appellant has submitted that the property in question has in fact not been mortgaged in favour of the U.P.F.C. and the appellant is the bona fide purchaser of the property. Therefore, the impugned order passed by the Court below should be modified to this extent that the sentence “ if the property is mortgaged in favour of the U.P.F.C.” be deleted and the simple order for restraining the opposite parties not to put the property to sale be issued.” Therefore, on the garb of the plea raised by the petitioner that the property in question in fact has not been mortgaged in favour of U.P.F.C. and he being bona fide purchaser of the property he filed the present writ petition challenging both the orders praying that he is entitled for the injunction without any condition put by the trial court with regard to the mortgage in favour of U.P.F.C. and he has prayed that said the restriction may be deleted from the order passed by the Trial Court. The appellate court after noticing aforesaid argument has further observed as under: “Under the circumstances it is to be decided by the court below whether the property in question has been mortgaged or not or the plaintiff appellant is a bona fide purchaser of the property in question…………..” The appellate court has further permitted the petitioner to the following effect: “In case if the plaintiff appellant has any grievance or wants to seek any modification in the order passed by the Court below then the appellant may approach the court below in this regard but at this stage I do not find any justification for modifying the impugned order passed by the court below.” The order passed by the appellate court therefore, needs no modification. The appellate court has permitted the petitioner to apply before the trail court for modification. The appellate Court after observing the aforesaid has further directed in the following manner: “I think it would be just and proper to issue the directions to the court below for deciding the application filed by the plaintiff appellant for obtaining the ad-interim injunction within a period of one month. The petitioner has brought to the notice of this court that he has moved an application in which order has been passed on 31.3.03by the Presiding Officer allowing his application and directing the respondent to produce original document within 7 days. Sri Naresh Pant, counsel for the respondent was also directed to produce the original document but Sri Pant has felt inability to produce original document on such a short time however, he has produced Photostat copy of the mortgage deed as well as possession memo. Order 39 Rule 3 A is inserted by Act No.104/76 provides that the court will dispose of application for injunction within 30 days, which reads as under: Where an injunction has been granted without giving notice to the opposite party, the court shall make an endeavour to finally dispose of the application within thirty days from the due on which the injunction was granted and where it is unable so to do, it shall record its reasons for such inability. As will appear from Order 39 Rule 3A the application is to be disposed of within 3 days from the date on which injunction was granted. After considering the arguments of the learned counsel for the petitioner as well as for the respondent I find that injunction application 7-C as well as its objection 17-C are pending. The application as well as objections have yet to be disposed of by the leanred Civil Judge (SD). No useful purpose will be served by keeping the present writ petition alive when there is already direction of the District Judge to the Civil Judge (SD). In the interest of justice directions may be given in terms of Order 39 Rule 3A C.P.C. for disposing of the application finally. Therefore, in the interest of justice I feel that both the parties will appear before the Civil Judge (SD) Dehradun on 16.7.2003 and the learned Civil Judge will pass suitable order on the application 7-C after considering the objection and the documents, if any, filed by the parties. The writ petition, therefore, is disposed of with the aforesaid observations. I direct to both the parties to appear before the Civil Judge (Senior Division), Dehradun on 16.7.2003 and the learned Civil Judge (SD) after taking into consideration the respective case of the parties will pass suitable order on the application 7-C. (Rajesh Tandon, J.) 10.7.2003 *Dhyani