before this Hon'ble Court on the same facts for the same
relief.
It is further submitted that the petitioner has not been
served with Caveat by opposite parties in any manner
whatsoever either through registered post or through
electronic mode till date.
2. That present petition seeks issuance of a direction to opposite
party no. I to expeditiously decide Application under Order
XXXIX Rules I & 2 readwith Section 151 Code of Civil
Procedure pending in O.S. No. 1537 of 2021 (Kandhai Prasad
@ Kanhai Prasad Yadav Vs. Ram Murat Dubey ). True copy
of Plaint and Application under Order xxxrx Rules 1 & 2
readwith Section 151 code of Civil Procedure are being filed
herewith as Annexure Nos. 1 & 2 respectively to the petition.
Necessary facts for decision are being stated in brief
hereunder.
3. That on 22.11.2021 petitioner had filed the above noted Suit
against opposite party no. 2 before opposite party no. I for
Cancellation of sale Deed (OS No.. 1537 of 2021) (Annexure
No. 1).
4. That the opposite party no. 1 registered the case and fixed for
08.02.2022 for Written Statement of defendant/ opposite party
no. I and also fixed for 15.02.2022 fpr framing of Issues and
directed for issuance of Notice to defendant. Certified copy of
Order dated 22.11.2021 as passed by opposite party No. I is
being filed herewith as Annexure No. 3 to the petition.
5. That on 10.03.2023 moved an Application for Interim
Injunction by means of Annexure No. 2 when the petitioner
came to know that opposite party no. 2 negotiating for
alienation of the property in question and opp. party no. 1
invited Objection fixing 28.04.2023 i.e. the day already fixed.
6. That potices Were issued against defendant but he had not
turned up till date.
7. That since then several dates have been fixed for Written
Statement of Defendant/opposite party no. 2 but the defendant
has not appeared.
8. That leamed court below is adjourning the case on the pretext
of non-appearance of opposite party no. 2. Certified copy of
Order Sheets are being filed herewith as Annexure No. 4
collectively to the petition.
9. That since the case is for cancellation of Sale Deed hence
there is urgency in the case for being decided the Application
for Interim Injunction.
10. That petitioner has been advised to state that though
provisions of Order XXXIX Civil Procedure Code provide for
hearing the defendant before passing of Interim Injunction but
it also provides that in case there is urgency the Civil Court is
not shom of authority to issue Interim Injunction in case the
defendant is not co-operating with the court.
I l. That petitioner has come .to know the reason for non appearance
of sole-defendant before the Coutt as he has a design to sell the
property in question and in case he is successful in his design,
the petitioner shall have to be
indulged in multiplicity of litigation and the same shall cause
irreparable loss and injury to him.
That petitioner has further been advised to state that the Civil
Coun is having the authority to proceed ex parte against the
defendant who is not cooperating with the Court but teamed
opposite party no. 1 is neither proceeding to decide the
Application for Interim Injunction nor to proceed ex parte in
the suit.
That there is no impediment before the leamed Court below
in proceeding further in petitioner's suit.
4. That it is expedient in the interest of justice that learned Court
below, opposite party no. 1, be directed to pass an Order on
petitioner's Application for Interim Injunction at the earliest
or within the time period as this Hon'ble Court may deem
fit and proper.
15. That being aggrieved and having been left with no equally
efficacious legal remedy, the petitioner prefers this writ
petition in terms of Article. 227 Constitution of India inter
alia on the grounds:-
GROUNDS
A. Because impugned inaction on the part of opposite party no. I in
the matter .0f deqision of petitioner's Application for Interim
Injunction is callous and cognizable,
B. Because Steps has been taken and defendant/opposite party no. 2
is not cooperating with the Court below.
C. Because there is genuine apprehension that opposite party no. 2
may take such steps which are prejudicial and detrimental to the
interest of petitioner.
D. Because inspite of mandate of Order >OOCIX to heaq
the defendant before deciding• the Application for
Interim Injunction but at the same breath the statute
provides for authority on the Civil Court to proceed
E. Because there is no fault on the part of petitioner.
F. Because speedy justice is law and delay in justice is
exception.
PRAYER
WHEREFORE, it is most respectfully prayed that this Hon'ble
Court may kindly be pleased to :-
(i). direct the opposite party no. I to proceed to deciße
petitioner's Application for Interim Injunction under Order
XXXIX Rules 1 & 2 readwith Section 151 Code of Civil
Procedure pending in O.S. No. 1537/2021 Kandhai Prasad @
Kanhai Prasad Yadav, Vs. RamMurat Dubey ) (Annexure No.
2) as expeditiously as possible or within the period as
stipulated by this Hon'ble Court in the interest of justice;
(ii). to pass such other suitable order or dilection as the Hon'ble
Court may deem just and proper in the facts and
circumstances of the case; and
(iii). allow the petition with costs against defendant no. 2
Lucknow, Dated
ADVOCATE
COUNSEL FOR PETITIONER
