MAJOR JAI SINGH THAPA Vs. LT. COL. VIJAY SINGH THAPA AND OTHERS
HIGH COURT OF UTTARAKHAND
Major Jai Singh Thapa
Lt. Col. Vijay Singh Thapa
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P C.VERMA,J. -
(1.)HEARD Sri Sharad Sharma and Sri Ashutosh Sharma, learned counsel for the petitioner and Sri S. K. Posti, Sri M. M. Ghildyal and Sri Ram Ji Srivastava, learned counsel for the respondents.
(2.)THIS writ petition has been filed by the petitioner challenging the revisional order dated 9th July, 2001, passed by Additional District Judge/Spl. Judge Anti Corruption, Dehradun in Civil Revision No. 109 of 2001 against the order dated 6.2.2001 passed by Civil Judge (Sr. Division), Dehradun in Regular Suit No. 100 of 2001. Major Jai Singh Thapa v. Lt. Col. Vijai Singh Thapa and others.
The learned counsel for the petitioner submitted that the court below, while refusing to grant the ex-parte interim order, failed to appreciate that the purpose of the interim injunction was to be defeated by delay. The learned trial court after considering the facts of the case found that it was not a case to grant ex-parte interim order without hearing the other side. In revision too, the revisional court has also considered in detail the facts of the case in order to arrive at the conclusion as to whether the purpose of grant of interim injunction would be defeated by delay. It is worth to quote the reason given by the revisional court, which reads as under
"It is evident from the submission of ` both the parties that Lt. Col. Ram Singh Thapa became the sole owner on 22.11.1993 of the above described premises No. 17 including the disputed property by virtue of the Will dated 15.11.1993 executed by Smt. Ratna Thapa in his favour. The genuineness of the Will which was executed by Lt. Col. Ram Singh Thapa on 18.1.1994 relating to the same property, is also not in dispute. Moreover, it is registered Will. On perusal of the Will dated 28.1.1994, it clearly transpires that on the date of execution of this Will, the school was being run in the disputed property. It is also admitted fact that "East Leigh Sunhali Himal Proparatory School Society" was constituted during the life time of Lt. Col. Ram Singh Thapa to run the School. This Society, was got registered on 25.4.1988 and the School was recognised by the Basic Siksha Adhikari, vide letter dated 23.9.1993. On the day, Col. Ram Singh Thapa expired, the Will dated 28.1.94 became operative and the School was being run by the said society on the disputed property. The disputed property was thus in the possession of this registered society on the day the Will became operative. Moreover, the disputed property has apparently been bequeathed by Col. Ram Singh Thapa in his Will dated 28.1.94 and the revisionist cannot claim any interest contrary to that Will, the genuineness whereof is admitted to himself. The settled position of law is that exparte injunction cannot be. granted unless Rule 3 of Order 39 C. P C. is complied with. The general rule is that the order under this provision should be passed only after hearing both the parties. An ex-parte order is an exception which could be issued only in rare cases where the Court finds that object of granting injunction would be defeated by the delay."
(3.)HOWEVER , these reasons were recorded by the revisional court only for the purpose of coming to a conclusion that a delay will not defeat the object of interim injunction.
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