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M/s Octane Hospitality Pvt. Ltd. v/s Shyam Narayan Singh

    First Appeal From Order No. 1177 of 2016
    Decided On, 22 December 2016
    At, High Court of Judicature at Allahabad
    By, THE HONOURABLE MR. JUSTICE DEVENDRA KUMAR UPADHYAYA & THE HONOURABLE MR. JUSTICE MAHENDRA DAYAL
    For the Appellant: Kuldeep Pati Tripathi, Vishal Jalan, Advocates


Judgment Text
1. Heard Sri Kuldeep Pati Tripathi,learned counsel for the appellant.

2. This First Appeal From Order challenges the validity of an order 22.10.2016 passed by learned court below whereby the application moved by the appellant-plaintiff for grant of interim injunction has been rejected.

3. The appellant has filed Regular Suit no.0001799/2016, which is pending before the court below, with the prayer that by a decree of possession the respondent-defendant be directed to handover the vacant peaceful possession of the property in suit. A further prayer for recovery of certain amount towards damages has also been made in the suit.

4. An application for grant of interim injunction under Order 39, Rule 1 and 2 of CPC was moved by the appellant with the following prayers:-

"For the facts, reasons and circumstances deposed in the accompanying affidavit, particularly in light of the fact that the building is about 80 (Eighty) years old and is in dilapidated condition, some portion whereof fell down in earthquake in the year 2015 and some portion of the building is still intact but the same in very ruinous condition and may fall down at any moment, it is most respectfully prayed of this Hon'ble Court to kindly be pleased to pass an ad-interim injunction order in favour of the plaintiff against the defendant, directing him to vacate the property in dispute in his illegal possession and make matching alternative arrangements of similar size (etc.), for which the plaintiff is ready and willing to bear the rent(s), etc., during the pendency of the instant suit, without prejudice to the rights of the plaintiff, in the interest of justice, for which acts of kindness the plaintiff shall ever pray as in duty bound."

5. The appellant had earlier filed F.A.F.O No.934 of 2016 before this Court against the order dated 27.09.2016 whereby learned court below had invited objection on the application for grant of temporary injunction, namely, Application No.C-6. The said F.A.F.O was finally disposed of by this Court by means of the order dated 07.10.2016 observing therein that the court below shall take up the application for temporary injunction and pass appropriate order thereon on the next date fixed. It was further provided in the said order dated 07.10.2016 that if the respondent-defendant does not file any objection against the application for grant of temporary injunction, learned court below shall pass an ex-parte order on the application which shall be subject to final disposal of the same.

6. In compliance of the order dated 07.10.2016, the learned court below has proceeded and considered the application for grant of temporary injunction by means of the impugned order and has rejected the same. After discussing the case of the appellant-plaintiff, learned court below has observed that prayers made in the plaint for grant of final relief and those made in the application seeking grant of temporary injunction are substantively the same. Relying on settled principle of law that no interim relief or injunction much less mandatory injunction can be granted at the interim stage, which is in the nature of final relief/final decree, learned court below has rejected the application moved by the appellant-plaintiff.

7. If the prayers made in the suit and the prayers, as quoted, made in the application for grant of interim injunction filed by the plaintiff under Order 39, Rule 1 and 2 of CPC are compared what is noticed is that they are the same. We are convinced that the findings recorded by the court below in the impugned order dated 22.10.2016 are correct. The prayers made in the main suit and those in the application for grant of temporary injunction are substantively the same and hence, in our considered opinion, the impugned order dated 22.10.2016 does not suffer from any illegality so as to call for any interference by this Court.

8. The F.A.F.O. is,thus, dismissed at the admission stage itself.

9. At this juncture, learned counsel for the appellant has stated that in fact, the property which is the subject matter of suit is in a dilapidated condition and the authorities of Nagar Nigam have been issuing notices time and again to demolish the building. He has drawn attention of the Court to a notice dated 10.06.2016 issued to (1) respondent-defendant Sri Shyam Narayan Singh, (2) Sri Krishna Dass Agarwal, (3) Sri Sanjeev Agarwal and (4) Sri Shamim. The suit property is said to have been purchased by the appellant from Sri Krishna Dass Agarwal and Sri Sanjeev Agarwal and hence, it has been stated by learned counsel for the appellant that in case any mishap occurs in any part of the building, the responsibility will be that of the appellant.

10. It is needless to say that the appellant cannot be held responsible or on his shoulders no responsibility can be fixed for any mishap which occurs in the suit property in case he is not in possession of the said portion.

11. Looking into the overall facts and circumstances of the case, learned cou

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rt below is directed to expedite the proceedings of Regular Suit No.0001799/2016; M/s Octane Hospitality Private Limited v. Shyam Narayan Singh in accordance with law and conclude the same within a period of twelve months from the date of production of a certified copy of this order. 12. It is further directed that no adjournment shall be granted by the learned court below except in extraordinary circumstances, that too, on the application to be preferred by the party concerned, on which learned court below shall pass a reasoned and speaking order.
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