Allahabad High Court
RAKESH KUMAR YADAVversusSMT SIRTAJI DEVI SINCE DECEASED AND 4 OTHERS
- Decided
- Bench
- ABDUL SHAHID
Holding
The appeal is dismissed because the delay in filing was wilful and the appellant had already availed himself of the remedies before the trial court.
Summary
The appellant, Rakesh Kumar Yadav, appealed an ex parte injunction granted under Order 39 Rule 1 of the CPC in the original suit No. 135 of 2025 filed by Smt. Sirtaji Devi. He had filed his written statement on 11 April 2025, indicating knowledge of the suit, and later filed a writ petition under Article 227, which was disposed on 13 March 2026. The appeal was filed on 15 April 2026, a delay of 345 days, which the court held to be wilful and deliberate. The court observed that the appellant had already raised objections and participated in the trial court proceedings, and that the delay defeated the purpose of the appeal. Consequently, the appeal was dismissed for being untimely and lacking merit.
Issues considered
- Whether an appeal against an ex parte injunction under Order 39 Rule 1 CPC is maintainable when filed after a substantial delay despite the appellant's prior participation in the suit.
- Whether the existence of a pending earlier suit affects the maintainability of the later suit and the appeal.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order 39 Rule 1
Subjects
- ex parte injunction
- Order 39 Rule 1 CPC
- delay
- appeal maintainability
- civil procedure
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
FIRST APPEAL FROM ORDER DEFECTIVE No. - 562 of 2026
Rakesh Kumar Yadav
.....Appellant(s)
Versus
Smt Sirtaji Devi Since Deceased And 4 Others
.....Respondent(s)
Counsel for Appellant(s) : Vijay Kumar
Counsel for Respondent(s) :
Court No. - 39
HON'BLE ABDUL SHAHID, J.
1. Heard learned counsel for the appellant-defendant, who has challenged
the exparte order dated 30.1.2025, passed by learned Civil Judge (Junior
Division), Bansgaon, Gorakhpur in Original Suit No. 135 of 2025 (Smt.
Sirtaji Devi and another Vs. Rakesh Kumar Yadav and others).
2. Learned counsel for the appellant has submitted that valuation of the
original suit is Rs. 300/-. He has submitted that prior to filing of original
suit No. 135 of 2025, Suit No. 1684 of 2021 is already pending, hence
later suit No. 135 of 2025 is not maintainable.
3. In the said Original Suit No. 135 of 2025, the appellant has filed his
written statement on 11.4.2025, hence it is categorically clear by his own
admission that he was having sufficient knowledge of filing of said suit
on 11.4.2025. Thereafter, he had preferred a writ petition Under Article
227 No. 926 of 2026 (Rakesh Kumar Yadav Vs. Smt. Sirtaji Devi(since
deceased) and 3 others) before this Court which had been disposed of on
13.3.2026. The objection against exparte injunction which was granted
under Order 39 Rule 1 CPC has been already filed before the learned trial
court, whereas this appeal has been filed before this Court with a delay of
345 days. The delay is wilful and deliberate as well as own knowledge, he
has filed written statement on 11.4.2025 and filed the present appeal
before this Court on 15.4.2026. Even after knowledge, he has filed this
appeal after a year. Meanwhile, he has filed objection as well as written
statement before the learned trial court. The valuation for any First
FAFOD No. 562 of 2026
2
Appeal From Order before this Court arose if valuation goes above to Rs.
25,000/. The present appeal has been filed with a huge delay which is
wilful and deliberate. There is consistency of multiplicity of proceedings
and avoiding actual remedy available to the defendant/appellant before
the learned trial court.
4. In view thereof, the present appeal is liable to be dismissed for the
reasons mentioned herein above and it is, accordingly, dismissed.
(Abdul Shahid,J.)
April 20, 2026
sfa/
Digitally signed by :-
SYED FAHEEM AHMAD
High Court of Judicature at Allahabad
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