- (1.) THIS appeal has been filed by the appellant aggrieved by the order dated 09.03.2010 passed by the Additional District Judge (Fast Track) No.2, Sri Ganganagar ('the trial court'), whereby, the plaint filed by it has been ordered to be returned under the provisions of Order VII, Rule 10 CPC.
(2.) THE brief facts of the case are that the appellant filed a suit for declaration and injunction against the respondent-UIT. An application under Order VII, Rule 11(d) CPC was filed by the respondent-UIT that the plaintiff Union of India had not complied with the provisions of Section 98 of the Urban Improvement Act , 1959 ('the Act') and, therefore, the suit was barred by law. The trial court after hearing the parties and accepting the submissions of the UIT, came to the conclusion that in absence of notice under Section 98 of the Act, the suit was not maintainable and, therefore, directed return of plaint by the impugned order.
(3.) IT is submitted by learned counsel for the appellant that the order impugned passed by the trial court is ex facie against the express provisions of law and the same therefore, deserves to be set aside. It was submitted that while passing the impugned order the trial court has ignored provisions of Sub- section (4) of Section 98 of the Act, which contemplates a situation where only relief claimed in a suit is an injunction and the object of the said suit would be defeated by giving notice under Sub-section (1), then the said provision is not applicable. The suit filed by the appellant was of emergent nature, as it had filed the said suit seeking injunction against cancellation of allotment order and its dispossession in pursuance to the said cancellation and, therefore, provisions of Section 98(4) were clearly attracted.;