1 Neutral Citation: 2025:AHC-LKO:42489 HIGH COURT OF JUDICATURE AT ALLAHABAD (LUCKNOW) Court No.- 7 WRIT – C No. 6701 of 2025 Brijesh Kumar Shukla …. Petitioners Versus State of U.P. Thru. Prin. Secy. Deptt. Of Revenue Lko. and 2 Others. ….Respondents Counsel for Petitioner(s): Manoj Kumar Shukla Counsel for Respondent(s): C.S.C., Ajay Kumar Verma, Anand Mani Tripathi, Divya Dwivedi, Manoj Kumar Mishra, Piyush Tripathi CORAM: HON'BLE PANKAJ BHATIA, J. J U D G M E N T Order on I.A. No.NIL, Dated 24.07.2025 – Application for amendment: 1. The application has been filed today in Court seeking amendment and praying that the petition be treated to be one under Art. 227 of the Constitution. The said application is taken on record. 2. Heard learned counsel for the applicant/petitioner and Shri Anand Mani Tripathi, Shri Manoj Kumar Mishra, Ms. Divya Dwivedi, Shri Piyush Tripathi & Ms. Shubhangi, learned counsel(s) appearing for respondent no.2. 2 3. During the course of the arguments, one of the preliminary objections taken by learned counsel for the respondents was that a writ would not lie under Art. 226 of the Constitution and would be maintainable under Art. 227 of the Constitution. 4. The amendment application is allowed for the reasons recorded in the subsequent paragraphs. 5. Let this petition be treated as a petition under Art. 227 of the Constitution of India. Order on Writ Petition: 6. Present petition has been filed by the petitioner challenging the order dated 09.05.2025 passed in Original Suit No.447 of 2025 whereby the Civil Judge (Senior Division), Court No.20, Barabanki had granted an ex-parte injunction in exercise of powers under Order 39 Rule 3 of CPC. 7. Learned counsel for the petitioner argues that the suit in question was filed alleging that an agreement to sell was executed in favour of the petitioner some time in the year 2015 and thereafter in 2025, a suit was filed seeking mandatory injunction that the possession may not be disturbed during the pendency of the suit and no steps be taken for eviction of the plaintiff to the suit. The second relief sought was seeking declaration that the sale deed executed in favour of the petitioner and the defendant to the suit, on 30.04.2025 be declared as null and void. 8. It is argued that on the basis of the said allegation, the Civil Judge (Senior Division) without even compliance of the mandatory provisions contained under proviso to Order 39 Rule 3 of CPC has proceeded to grant an injunction. He draws my attention to the injunction order which does not record any reasoning for grant of ex-parte injunction which, according to the petitioner, is contrary to the mandate of the proviso to Order 39 Rule 3 of CPC and as per his submission in the absence of compliance of the proviso, the entire order is rendered void. He further argues that in terms of the provisions contained under Order 43 Rule 1(r) 3 CPC, although, an appeal is prescribed against the orders, however, no appeal is prescribed against orders passed under Order 39 Rule 3 CPC, as is in the present case. Thus, the petitioner has approached this Court under Art. 227 of the Constitution of India. 9. In the light of the said, it is argued that the injunction has been granted contrary to the mandate of proviso to Order 39 Rule 3 CPC. My attention is also drawn to the prayer clause of the plaint to impress that beyond the reliefs claimed, the injunction has been granted restraining the defendants from selling the property in question which is not even prayed for and thus, a request is made for interference against the said order. 10. Learned counsel for the respondent, on the other hand, argues that the application for amendment seeking amendment of writ petition from Art. 226 of the Constitution to Art. 227 of the Constitution cannot be permitted and the respondents be granted time to file objection to the said amendment application. 11. It is further argued that an appeal is prescribed and lies against the order passed under Order 39 Rule 3 CPC in view of the judgment of the Full Bench in the case of Zila Parishad, Budaun and Ors. vs. Brahma Rishi Sharma; AIR 1970 ALL 376 (FB). It is further argued that the writ petition is filed for a relief of certiorari which is maintainable only under Art. 226 of the Constitution and it is fairly settled that an order of the trial Court cannot be challenged in proceedings under Art. 226 of the Constitution. In this regard, reliance is placed upon judgment of the Supreme Court in the case of Radhey Shyam and Anr. vs. Chhabi Nath and Ors.; (2015) 5 SCC 423 with emphasis on Paras – 25 & 27, which read as under: “25. It is true that this Court has laid down that technicalities associated with the prerogative writs in England have no role to play under our constitutional scheme. There is no parallel system of King's Court in India and of all the other courts having limited jurisdiction subject to the supervision of the King's Court. Courts are set up under the Constitution or the laws. All the courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under 4 Article 227. Writ jurisdiction is constitutionally conferred on all the High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of tribunals or authorities or courts other than judicial courts. There are no precedents in India for the High Courts to issue writs to the subordinate courts. Control of working of the subordinate courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227. Orders of the civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts. While appellate or revisional jurisdiction is regulated by the statutes, power of superintendence under Article 227 is constitutional. The expression “inferior court” is not referable to the judicial courts, as rightly observed in the referring order in paras 26 and 27 quoted above. 27. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226.” 12. My attention is also drawn to the judgment of the Supreme Court in the case of Municipal Corporation of Greater Mumbai and Ors. vs. Vivek V. Gawde Etc.; 2024 INSC 985 with emphasis on Paras 14 & 15, which are quoted herein below: “14. In view of such binding decision, the inescapable conclusion presenting itself is that the appellate order under challenge before the High Court was rendered by a civil court, and it is trite that orders passed by a civil court cannot be challenged in a writ petition under Article 226 of the Constitution. This point in law has been decisively reiterated in the 3-Judge Bench decision in Radhey Shyam v. Chhabi Nath. This Court, while holding that an order of the civil court could only be challenged under Article 227 of the Constitution, and not Article 226 thereof, ruled that: “25.***All the courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227. Writ jurisdiction is constitutionally conferred on all the High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of tribunals or authorities or courts other than judicial courts. There are no precedents in India for the High Courts to issue writs to the subordinate courts. Control of working of the subordinate courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227. Orders of the civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts. While appellate or revisional jurisdiction is regulated by the statutes, power of superintendence under Article 227 is constitutional. The 5 expression “inferior court” is not referable to the judicial courts, as rightly observed in the referring order [Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616] in paras 26 and 27 quoted above. *** 27. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view [Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616] of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226.” (emphasis supplied) 15. Thus, the writ petition of the respondents seeking quashing of the decision of a civil court by issuing a writ of certiorari was not maintainable and ought to have been dismissed at the threshold with respect to its primary relief.” 13. It is further argued on the basis of the pleadings of the plaint that although the relief claimed was: “'अ' यह कि डिी स्थायी किषेधाज्ञा बह वादी किवरुद्ध प्रडिवादीज इस आशय ी प्रदा ी जावे कि प्रडिवादीज व उे अभि!ा"ओं ो जरि'ये स्थायी किषेधाज्ञा किषेडिध ' किदया जावे कि वह किववाकिद !ूकि) गाटा संख्या 452/1 'बा 0.057 हे०, गाटा संख्या 607 'बा 0.300 हे०, गाटा संख्या 615 'बा 0.162 हे०, गाटा संख्या 616 'बा 0.162 हे०, गाटा संख्या 634 'बा 0.304 हे० ु ल 5 किा 'बा 0.985 हे० स्थिस्थ ग्रा) ु 'ौली, पग'ा व हसील बाबगंज, जिजला बा'ाबंी प' वादी े शांडिपूर्ण" ब्जा व दखल )ें ोई किवडिध किवरुद्ध हस्क्षेप 'ें औ' ही वादी ो किववाकिद !ूकि) से जब'दस्ी बेदखल 'ें।" however, the relief for restraining the defendants from transferring the property is implicit in the said relief and thus, the trial Court was justified in granting the relief restraining the defendants from alienating the property. 14. 14. During the course of the argument, a copy of the agreement to sell executed in the year 2015 and duly registered was also placed before me which is taken on record. 15. In the light of the said, it is argued that the vendor of the defendant who had executed the sale deed on 30.04.2025 had executed an agreement to sell in favour of the defendant in the year 2015 and certain money were advanced and thus, the suit as filed was maintainable. 6 16. Reliance is also placed upon Section 54 of Transfer of Property Act which defines ‘sale’. It is argued that agreement to sell, for all practical purposes, had accepted the sale consideration and would fall within the definition of Section 54 of the Transfer of Property Act. 17. It is further argued by learned counsel for the respondents that necessary parties, as were arrayed in the suit, have not been joined herein and thus, the writ petition deserves to be dismissed on that count also. 18. It is further argued that the defendants in the suit have not been arrayed deliberately as the petitioner is in league and collusion with the defendants who have not been arrayed in the present writ petition. 19. It is further argued that the agreement to sell was executed in favour of respondent no.3 by Honey Exim Pvt. Ltd. through Director Tariq Ahmad whereas the sale deed in question has been executed on behalf of Honey Exim Pvt. Ltd through Director Santosh Agrahari who was earlier the Director of respondent no.3 and also continues to be the Director of respondent no.3. 20. In rejoinder, learned counsel for the petitioner argues that the suit as filed was not even maintainable. 21. In reply to the arguments raised by learned counsel for the petitioner in rejoinder, learned counsel for the respondent argues that with regard to the maintainability of the suit, it is open the petitioner to take defence in the written statement which shall be considered after the issue is framed in accordance with law and cannot be seen at this stage. 22. It is also argued that a written statement and objections have already been filed before the trial Court. 23. In the light of the said, it is argued that the petition is liable to be dismissed. 24. In the light of the submissions as recorded above, prima-facie, the writ petition itself was filed indicating Civil Writ Petition Under Article 7 226 and 227. Subsequently, ‘Article 227’ was scrolled off as is evident from the naked eye for which an amendment application has been filed. The said amendment deserves to be allowed inasmuch as it is well settled that an order passed by the trial Court can be challenged in proceedings under Article 227 of the Constitution. 25. The said relief for approaching this Court under Article 227 cannot be denied on the ground that there were procedural errors for the amendment. Once the amendment application is allowed, the objection of the respondent to that extent merits rejection and is accordingly rejected. 26. The argument of learned counsel for the respondent that an appeal lies under Order 43 Rule 1(r) CPC against an order of injunction even if it is ex-parte also merits rejection for the reason which will be recorded subsequently. 27. From the plaint and the agreement to sell which has been placed, it is evident that the entire suit is nothing but a legal jugglery. A registered agreement to sell was executed in favour of the respondents in the year 2015. The time of performance in the agreement was one year with a provision that in case the sale deed is not executed within a period of one year, the same can be executed through Court. No suit for specific performance has admittedly been filed by the respondents for execution of sale deed in their favour. The agreement to sell does not even record that the respondents are being put in possession in pursuance to the agreement to sell so as to enable the respondents to claim the benefit flowing from Section 53A of Transfer of Property Act. The suit in question was filed after the limitation for filing the suit for specific performance had come to an end. The prayer in the suit besides mandatory injunction, is to declare the sale deed dated 30.04.2025 as null and void. The entire suit does not disclose as to how the respondents claim to be the owner of the property which has been sold by virtue of the sale deed dated 30.04.2025. 8 28. Prima-facie, on reading of the agreement to sell, no right flows in favour of respondent no.3 as also been held by the Supreme Court in the case of Suraj Lamp and Industries Private Limited v. State of Haryana and Anr.; (2012) 1 SCC 656. 29. Thus, the entire suit was based upon no claim with regard to ownership of the property or claiming any benefit of Section 53A of Transfer of Property Act. There is no relief for specific performance even in the suit filed in the year 2025. The trial Court has passed the order in a cursory manner, the trial Court has not considered the suit in its entirety. It has not even recorded any existence of a prima-facie case, the balance of convenience or irreparable hardship – the three sine qua non for grant of mandatory injunction. No reasoning as has been mandated in terms of proviso of Order 39 Rule 3 CPC has been recorded. The manner in which the injunction has been granted cannot be ignored by this Court while exercising its power under Art. 227 of the Constitution. 30. At this stage, learned counsel for the respondents states that he does not want to file a counter affidavit and the matter may be decided finally. 31. In view of the said statement, the order impugned dated 09.05.2025 is set aside. 32. District Judge, Barabanki is directed to transfer Suit No.447 of 2025 to any other Court of competent jurisdiction except Civil Judge (Senior Division), Court No.20, Barabanki. 33. The Court to which the proceedings will be transferred shall decide the injunction application afresh within a period of 15 days as the objections have already been filed. 34. In view of the manner in which the order is passed, the same cannot be appreciated. Thus, Senior Registrar of this Court is directed to place a copy of the order passed by the Civil judge (Senior Division), Court No.20, Barabanki alongwith a copy of the suit, a copy of the injunction granted and a copy of this order before the Administrative Judge of 9 District Barabanki who may, if deems appropriate, take action on the administrative side. 35. Writ petition is allowed in above terms. Date: 24.07.2025 [Pankaj Bhatia, J.] Nishant Digitally signed by :- NISHANT MOHAN High Court of Judicature at Allahabad, Lucknow Bench