WPMS/1377/2017 of Sunil Chauhan Vs Smt Suman Goyal AND ANOTHER

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition No. 1377 (M/S) of 2017

Sunil Chauhan

Petitioner

versus

Smt. Suman Goyal & another….. Respondents

Mr. Piyush Garg, Advocate for the defendant-petitioner.

U.C. Dhyani, J. (Oral)

By means of present writ petition, the petitioner seeks following reliefs, among others:

(i) To issue writ, order or direction in the nature of certiorari for quashing the order dated 06.06.2017, passed by learned District Judge, Dehradun, in Misc. Civil Appeal no. nil of 2017, Sunil Chauhan vs Smt. Suman Goyal and others, whereby the application filed by the petitioner under Rule 13 of the General Rules (Civil) has been dismissed and the appeal filed by the petitioner has been directed to come up for admission on 03.07.2016, i.e., after the summer vacations and to accordingly direct the learned District Judge, Dehradun to hear the appeal filed by the petitioner during summer vacations.

To issue writ, order or direction in the nature of certiorari for quashing the order dated 31.05.2017, passed by learned Civil Judge (Sr. Div.), Dehradun in O.S. no. 303 of 2017,

Suman Goyal vs Sunil Chauhan, whereby the learned court has granted ex-parte injunction in favour of the respondents / plaintiffs.

2) Original suit no. 303 of 2017 was instituted by the plaintiffs (respondents herein) against defendant (petitioner herein) for relief of permanent prohibitory injunction for restraining the defendant from raising construction over open terrace, description of which is given at the foot of the plaint.

3) An application under Order 39 Rules 1&2 CPC was also filed along with the said suit on 31.05.2017. Learned Civil Judge (Sr. Div.), Dehradun granted ad-interim injunction order against the defendant-petitioner in respect of open terrace (suit property). Aggrieved against the same, the defendant approached learned District Judge during summer vacations.

4) Rule 13 of the General Rules (Civil), 1957 provides that – except with the consent of parties, no suit, case or appeal shall be heard on gazetted holiday:

Provided that on gazetted holiday court shall not refuse to do any act or make any order urgently required or which may with propriety be done or made out of court.

5) The learned lower appellate court did not find urgency in the matter and, therefore, refused to entertain misc. civil appeal during vacations. Aggrieved against order dated 06.06.2017, present writ petition has been filed by the defendant-petitioner.

6) It may be noted here that ad-interim injunction order was granted to the plaintiffs-respondents on 31.05.2017. The summer vacations commenced from 01.06.2017. This Court should not substitute its own discretion for the discretion exercised by learned lower appellate court in not entertaining misc. civil appeal. This Court should not usurp the jurisdiction of lower appellate court. No interference is, therefore, called for in the order dated 06.06.2017. Lower Appellate Court has fixed 03.07.2017 for hearing on admission of misc. civil appeal. Trial court has fixed 17.07.2017 for filing objections / disposal of application no. 6C.

7) It is hoped and expected that an endeavour shall be made by the lower appellate court as well as by the trial court to decide temporary injunction application, along with objections, at an earliest possible on the date fixed or within shorter period of time.

8) Learned counsel for the petitioner, on receiving instructions from his client, submitted that the

petitioner is laying temporary structure without raising any permanent construction and if the lower appellate court or the trial court directs him to remove even such temporary structure, defendant-petitioner shall abide by the same.

9) The Court records aforesaid submission of learned counsel for the petitioner and disposes of the writ petition.

(U.C. Dhyani, J.)

Dt. June 13, 2017Negi