Order 43 rule 1 maintainable or not?
Mohammed Rizwan Shaikh
(Querist) 31 October 2020
This query is : Resolved
Respected Sir's,
A Suit for Temporary Injunction was filed to restrain the Defendants from entering upon the suit plot in 2018. In Feb' 2020 the Hon'ble Trial Court issued interim orders in my favor, restrained the Defendants from entering upon the land until final decision. Its not an EXPARTE Order. Defendants Written Statement/ Counter Claim has been rejected. The Defendants filed appeal under Order 43 rule 1 before the District Court, Jalgaon. Moreover, the Appellant stated in their Appeal that the Trial Court's order is illegal.
Please note that the Trial Court has specifically recorded that no evidence was produced by the Defendants and Plaintiff's evidence are very strong. The Trial Court held that the Plaintiff is in Actual and Constructive possession since the execution of the Gift Deed. The case is still pending before the trial court at ISSUES stage.
The Appeal filed by Def. is maintainable?
I would certainly appreciate if you Experts help me with the citations of the higher courts with regards to the maintainability of the Appeal when the application/case is still pending in the trial Court. Please HELP.
Mohammed Rizwan
Rajendra K Goyal
(Expert) 31 October 2020
The case is pending with the trial court, appeal is in relation to interim orders, court may not allow the appeal till there are very strong reason to order otherwise..
Mohammed Rizwan Shaikh
(Querist) 31 October 2020
Goyal Sir....wonderful....thanks so much......any citations would be really helpful.
P. Venu
(Expert) 01 November 2020
The facts posted are inconsistent. If the matter is pending for trial, how is that the Written Statement and counterclaim has been rejected?
Dr J C Vashista
(Expert) 01 November 2020
Wrong and disjointed statements.
No case is made out / can be admitted and maintainable simplicitor for temporary injunction.
Written Statement and Counter claim can not be rejected or dismissed.
The appeal before District Judge Jalgaon has been filed assailing the order u/o XXXIX Rule 1, 2A, 4 or 10 CPC or some other rule ?
Issues are stated to be framed then where does the question of producing evidence by the defendant /appellant (or even plaintiff) has cropped qua actual/ physical/ constructive/ symbolic possession of the property stated to have been donated through a registered Gift Deed?
Mohammed Rizwan Shaikh
(Querist) 01 November 2020
Respected Experts,
Rightly said Experts its my mistake....the Defendants had also filed application under Order 39 Rule 1 and 2 which has been rejected and Counter Claim. The Gift of the property has been executed by a Muslim Donor to a Muslim Donee (husband and wife).
The order states that "Per contrary defendants have not placed on record any cogent and reliable evidence which would prima-facie shows that, suit property is in their possession."
Further, "Defendants claims their possession over the suit properties, but they did not file on record any document or oral evidence which shows that they are prima-facie in the possession of the properties. Evidence produce by plaintiff to show her possession over suit properties is more strong and reliable than evidence produce by defendants."
And lastly the Court held that:
(1) Application at Ex. 6 is allowed.
(2) The Defendants or any person on his behalf are temporarily restrained from causing obstruction to the possession and occupancy of Plaintiff over the suit properties mentioned in Plaint para no. 1A to 1D in any manner till final disposal of the suit.
(3) Application at Exh. 22 is rejected.(Defendants Application)
(4) Parties to bear their own cost.
And thus the Defendants filed an Appeal under O 43 Rule 1 before the District Court.
Please advice experts.
Mohammed Rizwan
J K Agrawal
(Expert) 12 November 2020
to file an appeal against order of TI is right of party. You appear before the District Court and repeat all this thing before that Court. You will get success again.
Mohammed Rizwan Shaikh
(Querist) 13 November 2020
Many many thanks Agrawal Sir......I will definitely do as advised.....Sir are there any citations which can help me in this regard?
Rajendra K Goyal
(Expert) 13 November 2020
Please discuss with your lawyer for citation.
