Allahabad High Court
RAMPAT AND 3 OTHERSversusSHRIPAT AND ANOTHER
- Decided
- Bench
- ROHIT RANJAN AGARWAL
Holding
The appellate court erred in granting the temporary injunction as the earlier suit challenging the will did not contain an injunction, making the fresh suit barred and the order unsustainable.
Summary
The petitioners sought to set aside an appellate order that granted a temporary injunction in a 2006 suit for permanent injunction concerning a disputed property, arguing that the earlier 1996 suit challenging a 1993 will was still pending. The court noted that the 1996 suit, which sought to declare the will void, had been dismissed for want of prosecution but was later restored, and no injunction was in force in that suit. The 2006 suit sought only a permanent injunction without addressing partition or the will, and the trial court’s refusal of a temporary injunction was correctly based on the lack of a pending injunction in the earlier suit. The appellate court’s reversal was held erroneous, and the fresh suit was deemed barred under Order II Rule 2 of the CPC. Consequently, the appellate order granting the injunction was set aside and the writ petition was allowed.
Issues considered
- Whether the 2006 suit for permanent injunction is maintainable when an earlier suit challenging the will is pending.
- Whether the appellate court was correct in reversing the trial court’s refusal of a temporary injunction.
- Whether the fresh suit is barred under Order II Rule 2 of the CPC for the same property.
- Whether the property should be protected pending determination of the will deed.
Subjects
- will
- injunction
- partition
- Civil Procedure Code
- Order II Rule 2 CPC
- Article 227
- temporary injunction
- permanent injunction
- property dispute
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
MATTERS UNDER ARTICLE 227 No. - 16066 of 2025
Rampat And 3 Others
.....Petitioner(s)
Versus
Shripat And Another
.....Respondent(s)
Counsel for Petitioner(s) : Anugya Dwivedi, Girja Shanker
Mishra, Pratiksha Rai
Counsel for Respondent(s) : Ramakant Singh
Court No. - 9
HON'BLE ROHIT RANJAN AGARWAL, J.
1. This is a defendant's petition. Plaintiff-respondent no.1 had instituted
Suit No.763 of 1996 against the defendants-petitioners and respondent
no.2 for declaring the Will deed dated 01.11.1993 as null and void alleged
to have been executed by his father in favour of the defendants. The said
suit was dismissed for want of prosecution, but according to the
respondents' counsel, the said suit was restored to its original number.
2. It appears that in the year 2006, the plaintiff-respondent no.1 had filed
another Suit no.480 of 2006 claiming relief for permanent injunction in
respect of the suit property restraining the defendants from interfering in
his peaceful possession. In the said suit, there is no disclosure as to the
pendency of suit filed in the year 1996. Moreover, in paragraphs no.5 and
6 of the plaint, it has been alleged by plaintiff-respondent no.1 that it is a
joint property and no partition has taken place between the co-sharers.
3. An application 6-C2 was moved for grant of temporary injunction
which was rejected by the trial Court on 24.09.2025. Against the said
order, a misc. civil appeal was preferred by respondent no.1 which has
been allowed by the order impugned dated 22.11.2025, hence the present
writ petition.
4. Learned counsel for the petitioners submits that the second suit was not
maintainable as the first suit was for declaring the Will deed as null and
void and in that suit no relief was sought in respect of the suit property
mentioned in the second suit filed by the plaintiff-respondent no.1.
A227 No. 16066 of 2025
2
According to her, the amendment should have been moved in the first suit
filed for the relief as claimed in the suit of 2006.
5. Learned counsel appearing for respondent no.1 submits that till date the
partition had not taken place and the plaintiff-respondent no.1 has a share
in the property and the Court below has rightly proceeded to pass an order
of status quo.
6. I have heard counsel for the parties and perused the material on record.
7. It is an admitted case that petitioners no.1 and 2 and respondent no.1
are the sons of late Chulbul, while respondent no.2 is the wife of late
Chulbul. The Will was executed on 01.11.1993 in favour of defendants-
petitioners by late Chulbul. The said Will was challenged through Suit
No.763 of 1996. It appears that the said suit was dismissed for want of
prosecution on 21.11.2024, which according to the respondents' counsel
has been restored to its original number.
8. In the meantime, in the year 2006, another suit claiming relief for
permanent injunction restraining the defendants was filed by respondent
no.1 being Original Suit No.480 of 2006, in which, there is no disclosure
about the pendency in the suit filed by respondent no.1 in the year 1996.
Only relief for permanent injunction has been sought and no relief as to
the partition of the suit property has been claimed by the respondent no.1.
The trial Court has rightly rejected the application for grant of temporary
injunction which has been reversed by the appellate Court. The appellate
Court had wrongly held that as the suit of 1996 is pending in which
alleged Will deed dated 01.11.1993 is under challenge, the property needs
to be protected. The Court below failed to consider that there is no
injunction order operating in the suit of 1996.
9. Moreover, the plaintiff-respondent should have got the suit amended
and relief for permanent injunction should have been sought in suit of
1996. Fresh suit is barred under Order II Rule 2 CPC in respect of the
same property.
10. In view of the said fact, I find that the order impugned dated
22.11.2025 is unsustainable in the eyes of law and the same is hereby set
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aside.
11. The writ petition stands allowed.
(Rohit Ranjan Agarwal,J.)
September 11, 2026
A. V. Singh
Digitally signed by :-
AJAY VIKRAM SINGH
High Court of Judicature at Allahabad
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