Khajan Singh Vs. Brijendra Singh

Khajan Singh vs Brijendra Singh

Disposition Petition dismissed Court Allahabad Decided Aug 30, 2005

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Citation: sooperkanoon.com/494965
Court: Allahabad High Court
Judge: Anjani Kumar, J.
Decided On: Aug 30, 2005
Case Number: C.M.W.P. No. 57090 of 2005
Subject: Civil
Disposition: Petition dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- INDIAN PENAL CODE, 1860 [C.A. No. 45/1860]. Section 302; [M.C. Jain, R.C. Deepak & K.K. Misra, JJ] Murder Plea as to accused being minor School register and transfer certificate not proved before Court according to law Held, It has to be ignored and question of age is to be determined on other evidence and cir...

Key legal issue: Civil
Outcome / disposition: Petition dismissed
Acts & sections: Constitution of India - Article 226; Code of Civil Procedure (CPC) , 1908 - Sections 115

Parties & Advocates

Appellant / Petitioner

Khajan Singh

Advocate Rahul Sahai, Adv.

Respondent

Brijendra Singh

Advocate S.C.

Legal References

Acts: Constitution of India - Article 226; Code of Civil Procedure (CPC) , 1908 - Sections 115
Cases Referred: Rajendra Singh and Ors. v. Brij Mohan Agarwal and Anr.
Reported In: 2006(1)AWC119

Excerpt

- indian penal code, 1860 [c.a. no. 45/1860]. section 302; [m.c. jain, r.c. deepak & k.k. misra, jj] murder plea as to accused being minor school register and transfer certificate not proved before court according to law held, it has to be ignored and question of age is to be determined on other evidence and circumstances surfacing on record. age determined on the basis of x-ray plates and report prepared by c.m.o., is the correct age of accused. accused was declared to be child on the date of commission of offence of murder. however, considering fact that now accused was around 41 years, he cannot be sent to approved school. accused was directed to pay fine of rs.25,000/- under section 302 i.p.c., amount of fine was directed to be paid as compensation to wife of deceased. mohammad.....and the order dated 12th august, 2005, passed by the revisional court, whereby the revisional court dismissed the revision filed by the petitioner, copies whereof are annexed as annexures-'2' and '1', respectively to the writ petition.3. the facts, in short, of the present case are that the petitioner-plaintiff filed a suit for permanent injunction over the disputed property. along with the suit, an application was also filed by the petitioner-plaintiff before the trial court for grant of temporary injunction in his favour. the respondent-defendant filed objection to the application filed by the petitioner-plaintiff and denied the allegations made therein. the trial court after considering the evidence on record vide order dated 11th august, 2005, declined to grant ex parte temporary injunction and issued notices to the defendant-respondent with the observation that in the facts and circumstances of the case, the application for grant of temporary injunction cannot be accepted ex parte and fixed the case for 29th august, 2005 and rejected the application filed by the petitioner-plaintiff.4. aggrieved by the order passed by the trial court, the petitioner-plaintiff approached the revisional court by means of revision. the revisional court vide order dated 12th august, 2005, maintained the order passed by the trial court and dismissed the revision filed by the petitioner-plaintiff. the revisional court while dismissing the revision filed by the petitioner-plaintiff has relied upon a decision of this court in rajendra singh and ors. v. brij mohan agarwal and anr. 2003 (5) awc 3857 : 2003 (1) all cj 680 : 2003 (1) jclr 314, wherein this court has held 'while refusing to grant an ex parte temporary injunction by merely issuing notice upon such application may amount to a 'case decided' but the proviso restricts the power of the high court and precludes it from interfering in revision in such a case as the order of issuing notice on application for grant of ex.....

Full Judgment

Anjani Kumar, J.

1. Heard learned Counsel appearing on behalf of the petitioner.

2. The petitioner-plaintiff, by means of present writ petition under Article 226 of the Constitution of India, challenges the order dated 11th August, 2005, passed by trial court, whereby the trial court rejected the application filed by the petitioner-plaintiff for grant of temporary injunction and the order dated 12th August, 2005, passed by the revisional court, whereby the revisional court dismissed the revision filed by the petitioner, copies whereof are annexed as Annexures-'2' and '1', respectively to the writ petition.

3. The facts, in short, of the present case are that the petitioner-plaintiff filed a suit for permanent injunction over the disputed property. Along with the suit, an application was also filed by the petitioner-plaintiff before the trial court for grant of temporary injunction in his favour. The respondent-defendant filed objection to the application filed by the petitioner-plaintiff and denied the allegations made therein. The trial court after considering the evidence on record vide order dated 11th August, 2005, declined to grant ex parte temporary injunction and issued notices to the defendant-respondent with the observation that in the facts and circumstances of the case, the application for grant of temporary injunction cannot be accepted ex parte and fixed the case for 29th August, 2005 and rejected the application filed by the petitioner-plaintiff.

4. Aggrieved by the order passed by the trial court, the petitioner-plaintiff approached the revisional court by means of revision. The revisional court vide order dated 12th August, 2005, maintained the order passed by the trial court and dismissed the revision filed by the petitioner-plaintiff. The revisional court while dismissing the revision filed by the petitioner-plaintiff has relied upon a decision of this Court in Rajendra Singh and Ors. v. Brij Mohan Agarwal and Anr. 2003 (5) AWC 3857 : 2003 (1) All CJ 680 : 2003 (1) JCLR 314, wherein this Court has held 'while refusing to grant an ex parte temporary injunction by merely issuing notice upon such application may amount to a 'case decided' but the proviso restricts the power of the High Court and precludes it from interfering in revision in such a case as the order of issuing notice on application for grant of ex parte temporary injunction finally in view of second proviso to Section 115 of the Code of Civil Procedure, as amended in the State of U. P.'

5. In view of the law laid down by this Court in the case of Rajendra Singh (supra), in my opinion, no error has been committed by the courts below in refusing to grant ex parte temporary injunction without hearing the other side.

6. In view of what has been stated above, this writ petition has no force and is accordingly dismissed. However, there will be no order as to costs.

Same Court & Year Allahabad · 2005 Same Parties Khajan Singh vs Brijendra Singh Same Subject Civil Same Judge Anjani Kumar, J. Acts & Sections Constitution of India - Article 226; Code of Civil Procedure ...

Civil