HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 168 of 2010 Smt. Nanhi Bala Mandal And another. ……..Appellants Versus Harish Khera …….Respondent Mr. V.D. Bisen, Advocate for the appellants, Mr. Vipul Sharma, Advocate for respondent. Dated: July 30, 2010 Hon’ble V.K. Bist, J. This appeal has been filed by the appellant/ defendants against the order dated 30.03.2010 passed by Civil Judge (Sr. Div.), Rudrapur, District Udham Singh Nagar whereby the Court below allowed temporary injunction application (paper no. 6c) moved by the plaintiff/respondent. 2. Brief facts of the case, which emerged out from the record, are that the appellant no.1 is the recorded Bhoomidhar of Class 1A of half portion of Khet Khasra no. 31Kha Rakba 0.6870 hectare, Khet Khasra no. 33 Rakba 0.6800 hectare, Khet Khasra no. 34 Rakba 0.2600 hectare, Khet Khasra No. 35 Rakba 0.3600 hectare, Khet Khasra no. 36 Rakba 0.0500 hectare, Khet Khasra no. 37 Rakba 0.7400 hectare, Khet Khasra no. 38 Rakba 0.4600 hectare, measuring total 3.237 hectares of land. The said land was allotted to appellant’s husband under Government Act being a Bengali Refugee. After the death of her husband the appellant no.1 is recorded as Bhoomidhar with transferable right and is in exclusive cultivatory possession over the land. The respondent, taking the benefit of appellant’s weakness of being 2 illiterate and helpless, succeeded to get a sale deed executed from appellant by playing fraud. When appellant came to know about the forgery committed upon her, then she received a certified copy of sale deed from the office of Registrar and made a complaint on 21.10.2009 to the Collector and filed a Civil Suit no. 131 of 2009 ‘Smt. Nanhi Bala vs. Harish Khera and others’ in the Court of Civil Judge (Jr. Div.) Rudrapur for cancellation of sale deed and permanent injunction. It is asserted that on the basis of sale deed, the mutation proceeding was initiated being suit no. 30/14 of 2009-10 in the Court of Tehsildar, Gadarpur against which the appellant filed her objection. Despite pendency of said mutation proceedings the respondent instituted Civil Suit No. 2 of 2010 ‘Harish Khera vs. Nanhi Bala and another’ in the Court of Civil Judge (Sr. Div.), Rudrapur for permanent injunction alongwith an application for temporary injunction which is in between the same parties and is based on same set of facts. The appellants also filed objection against temporary injunction application. But the learned Trial Court did not consider and appreciate the facts and law and granted temporary injunction in favour of the respondent. Aggrieved with the order of learned Trial Court, the appellants have preferred this appeal. 3. The plaintiff/respondent has filed a counter affidavit in which it has been stated that the appellant no.1 Nanhi Bala Mandal executed a sale deed dated 01.09.2009 in favour of the respondent before Sub Registrar, Bazpur, but copy of said sale deed has not been annexed with the memo of appeal. The said sale deed was executed after payment of a sum of Rs. 8 lac (Rs. 4,01,000/- by cash and Rs. 3,99,000/- through cheque) 3 towads sale consideration. The said sale deed was with regard to the property being Khet Khasra no. 31 Kha admeasuring 0.6870 hectare, Khet Khasra No. 33 admeasuring 0.6800 hectare, Khet Khasra No. 34 admeasuring 0.2600 hectare, Khet Khasra No. 35 admeasuring 0.3600 hectare, Khet Khasra no. 36 admeasuring 0.0500 hectare, Khet Khasra No. 37 admeasuring 0.7400 hectare, Khet Khasra No. 38 admeasuring 0.4600 hectare, total admeasuring 3.237 hectares. As the appellant asked the respondent to cough out some more money but the respondent was not ready to give more money inasmuch as the amount of Rs. 8 lacs was settled between the parties. Thereafter, the appellant filed a suit before the court of Civil Judge (Jr. Div.), Rudrapur for cancellation of aforesaid sale deed which was registered as Suit No. 131/2009 on the ground that the respondent has not paid sale consideration and had executed a registered sale deed in his favour. Thereafter, the respondent instituted Civil Suit No. 2 of 2010 in the Court of Civil Judge (Sr. Div.), Rudrapur for permanent injunction and he also moved an application for temporary injunction. The Trial Court issued notices to the appellants and invited objection and after perusal of objection and hearing to the parties, the Trial Court vide order dated 30.03.2010 granted temporary injunction. 4. I have heard Mr. V.D. Bisen, the learned counsel for the appellants, Mr. Vipul Sharma, the learned counsel for the respondent and peruse the entire material available on record. 5. Mr. V.D. Bisen, the learned counsel for the appellants submitted that earlier the appellant instituted 4 Civil Suit no. 131 of 2009 in the Court of Civil Judge (Jr. Div.) Rudrapur for cancellation of sale deed and for permanent injunction. On the basis of admitted sale deed, the mutation proceeding was initiated being Suit No. 30/14 of 2009-10 in the Court of Tehsildar, Gadarpur against which the appellant filed her objection. Despite pendency of said mutation proceedings, the respondent instituted Civil Suit No. 2 of 2010 in the Court of Civil Judge (Sr. Div.), Rudrapur for permanent injunction, which is in between the same parties and is based on same set of facts. The appellants also filed objection against temporary injunction application. But the learned Trial Court did not consider and appreciate the facts and law and granted temporary injunction in favour of the respondent. He argued that the order passed by the learned Trial Court is bad and illegal as the suit is barred by Section 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as the C.P.C.). Section 10 of C.P.C. is also reproduced as under:- “10. Stay of suit.- No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in [India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of [India] established or continued by [the Central Government] and having like jurisdiction, or before [the Supreme Court].” 6. In the light of the mandatory provision contained in Section 10 of C.P.C., learned counsel for the appellants submitted that the interim injunction 5 application (paper no. 6c) ought to have been dismissed and the impugned order is liable to be dismissed. 7. On the other hand, Mr. Vipul Sharma, learned counsel for respondent submitted that the respondent filed application under Order VII Rule 11 read with Section 151 C.P.C. before the Civil Judge (Jr. Div.), Rudrapur on the ground that the suit was under valued and the Court fees to the suit has also not been paid as per the valuation, hence the same is liable to be rejected. He further submitted that Section 10 C.P.C. only relates to trial of suits. The Trial Court will be entitled to pass interlocutory orders in the nature of injunctions, therefore Section-10 C.P.C. has no application with regards to the order passed under Order 39 Rule 1 C.P.C. He argued that the cause of action is totally different, even the reliefs claimed in both the suits are different. At one hand the appellant has prayed declaration; declaring the sale deed as null and void i.e. suit of cancellation has been filed, whereas on the other hand the respondent has prayed for injunction. He further submitted that the appellant has raised this preliminary objection in the writ jurisdiction, but she did not file any application under Section 10 C.P.C. before the learned Trial Court. He submitted that this right should have been exercised before the Trial Court only. In support of his argument, he placed reliance upon the judgments reported in (1998) 5 SCC-69 and AIR 2000 Punjab & Haryana-224. 8. Having heard the learned counsel for the parties and after examining the papers annexed with the appeal, stay application and counter affidavit, I find that no application was ever filed by the appellant before the 6 Trial Court under Section 10 of C.P.C. Therefore, the appellant cannot be permitted to raise this argument before the Appellate Court. Even in the case where Section 10 of C.P.C. is applicable, the Trial Court can decide an injunction application. On merit also, I do not find any perversity in the order. Same is well reasoned order and does not require any interference. 9. In view of the above discussion, the appeal is dismissed. 10. No order as to costs. (V.K. Bist, J.) 30.07.2010 NCM: