V.C.MISRA, J. - (1.) SRI K.L. Grover, senior advocate assisted by Sri Rajesh Singh learned Counsel for the applicant and Sri Mukhtar Alam advocate learned Counsel for the respondents are present. On the Joint request of learned Counsel for the parties, this application is being disposed of finally at the admission stage itself without calling for counter -affidavit in terms of the Rules of Court.
(2.) THE facts of the case in brief are that the applicant was granted a licence by the Nagar Palika Parishad, Saharanpur respondents 1 and 2 for transportation and trading of meat from Saharanpur to New Delhi upto the quantity of 60 quintals per day for one year in the year 2001 which was extended from time to time and is valid till 31st March, 2007 due to personal animosity between the brother of the applicant -plaintiff and the present Chairman of Nagar Palika Parishad and on his pressure the aforesaid licence was cancelled vide order dated 13.11.2006 on the ground of alleged complaints against the applicant. Feeling aggrieved, the applicant filed a writ petition before this Court challenging the cancellation of his licence. This Court took cognizance of the petition and the interim stay application and issued notices on 6.12.2006 to the opposite parties. Since the petitioner was not granted ex parte interim order and only notices were issued, the applicant filed an appeal under Section 318 of Municipalities Act before the District Magistrate on 11.12.2006 against the main impugned order dated 13.11.2006 which is still pending. He also filed an Original Suit No. 1296 of 2006 before the Civil Judge (Senior Division) Saharanpur on 12.12.2006. Ex parte interim injunction order was granted to him on the same day. A Civil Misc. Appeal No. 117 of 2006 was filed by the respondents Nagar Palika Parishad against the ex parte interim stay order dated 12.12.2006 which was allowed and the ex parte stay order was vacated and the matter was remanded back with the directions to dispose of the application 6C on merits within one week fixing 25.1.2007. The appellant -Parishad had submitted that the plaintiff had obtained the ex parte injunction order fraudulently by concealing/ suppressing material facts to the effect that a writ petition was also pending in respect of the same relief and after obtaining the ex parte interim stay order dated 12.2.2006 the applicant -plaintiff had got their writ petition dismissed as withdrawn on 19.12.2006 that too without seeking the leave of the High Court for filing the said injunction suit to which plaintiff could not resort to in terms of the decision laid down in the case of M/s. Upadhyay and Co. v. State of U.P. and Ors. and prayed that the said Interim injunction so granted under fraud be rejected. The trial court after hearing the parties at length vacated interim injunction order and rejected the injunction application 6C vide order dated 6.2.2007 against which a Civil Misc. Appeal No. 6 of 2007 was filed by the plaintiff. This appeal was also dismissed on the ground that the plaintiff had obtained the interim injunction order by concealing/ suppressing material facts and had not come with clean hands and thus he was not entitled to any interim stay order as the relief sought was equitable and no equity lay in favour of the plaintiff. A reference was made to the decision in the case of Haji Mohd. Sayeed and Ors. v. Abdul Ghafoor and Ors. AIR 1995 All 688, that looking into the conduct and demeanour of the applicant -plaintiff being not equitable trial court could vacate, modify or rescind the relief. The appeal was rejected on 26.2.2007. The appellate court also found that the balance of convenience did not lie in favour of the plaintiff as he could claim compensation by way of damages in case the suit was allowed. I have perused the record and heard learned Counsel for the parties at length.
(3.) LEARNED Counsel for the respondents has referred to Order XXXIX, Rule 2 as amended by the State of U. P. which reads as under: Provided that no such injunction shall be granted: (a) where no perpetual injunction could be granted in view of the provisions of Section 38 and Section 41 of the Specific Relief Act, 1963 (Act 47 of 1963), or ... ... and any order for injunction granted in contravention of these provisions shall be void. Section 41 of the Specific Relief Act, 1963 reads as under: Injunction when refused. -An injunction cannot be granted:(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the Court; ;