Civil Appeal U/S 43 CPC
Purpose of appeal U/O 43: To challenge the order of the trial court before the appellate court, while the rest of the proceedings in the main suit are subjudice before the trial/civil court.
IN THE COURT OF LEARNED DISTRICT JUDGE,
(Name of the district)
In the matter of:-
(ABC)
…Appellant
Versus
(XYZ)
…..Respondent
APPEAL U/O 43 CPC AGAINST THE IMPUGNED ORDER DATED _________ PASSED BY (name of the judge), LEARNED CIVIL JUDGE, ISLAMABAD WHEREBY THE LEARNED CIVIL JUDGE DISMISSED THE APPLICATION U/O 39, RULE 1 & 2, READ WITH SECTION 151 CPC, OF THE APPELLANT.
Respectfully Sheweth:-
1. The brief facts of the instant appeal are the appellant filed a suit for a permanent injunction against the respondent with the assertion that the appellant is an owner in possession of (full description of the property in question) a, along with his brothers and father. The appellant along with his brothers and father is enjoying the peaceful and vacant possession of the suit property for a long without any interference or interruption from any corner or side. The respondent constructed a plaza adjacent to the suit property and he has no concern or title with the suit property in any manner whatsoever but now the respondent with malafide intention and ulterior motives is trying to encroach on the suit property by way of installation of signs board as well as through garbage and scrap into the suit property. The suit property exclusively belongs to the appellant and his brothers and father and the respondent has no right to encroach upon the suit property in any manner illegally, unlawfully and without any lawful reason or justification but the act of the respondent is not only illegal, unlawful but also genuine and lawful rights of the appellant.
2. That thereafter, the respondent appeared before the learned trial court and contested the suit by filing a written statement and the respondent also admitted the ownership and possession of the appellant over the suit property and also asserted that the respondent has no concern whatsoever with the suit land in his written statement but even otherwise despite submitting his written statement, the respondent has not restrained from his nefarious designs.
3. That after hearing and arguments of both the parties, the learned trial court were pleased to dismiss the application U/O 39 Rule 1 & 2 CPC vide order dated ________ which is perverse, void ab-initio, and liable to be set aside inter alia on the following:-
G R O U N D S
i. That the impugned order dated 06._____ is against the law and facts of the case.
ii. That the appellant is an exclusive owner in possession of the suit property and the respondent has no concern whatsoever with the property owned and possessed by the appellant but the respondent after appearing before the learned trial court and filing his written statement not restrained from his illegal acts and deeds while the impugned order empowers the respondent to fulfill his nefarious acts and the grievances of the appellant are still prevail, hence the impugned order is liable to be set aside.
iii. That the learned trial court did not consider and applied its judicial mind while passing the impugned order dated ___ and passed the impugned order in hasty and fanciful manners.
iv. That if the respondent succeeds in his nefarious and illegal deeds, designs, and acts, then the appellant shall suffer an irreparable loss.
v. That the balance and convenience lies with the appellant and the appellant also has a prima facie case but the learned trial court did not consider this important aspect of the case while passing the impugned order dated _____.
vi. That the impugned order dated __ is against the law and facts of the case, hence the same is liable to be set aside.
vii. That the counsel of the appellant submitted many judgments/precedents of apex courts but the learned trial court had not considered the same and did not refer to the judgment produced by the appellant’s counsel.
viii. That the impugned order is based on surmises and conjectures.
ix. That the impugned order is the result of misreading and non-reading.
x. That the impugned order resulted in a grave miscarriage of justice to the appellant.
xi. That the learned trial court did not consider material available on file and oral as well as documentary records on file which is a great miscarriage of justice.
xii. That if the impugned order dated ________ is not set aside, the appellant shall suffer an irreparable loss
In view of the above circumstances, it is, most respectfully prayed that the instant appeal may kindly be accepted and the impugned order dated __ passed by the court of (name of the judge), learned Civil Judge, (Tehsil or district) may kindly be set aside and the application U/O 39 Rule 1 & 2 may very kindly be accepted, in the interest of justice.
Any other relief which this Hon’ble court deems just and proper may also be awarded.
Appellant
Through
(Counsel)
Dated: _____
Certificate:-
Certified as per instructions furnished by the appellants this is the
first appeal on the subject ever moved before this Hon’ble Court.
No other petition, revision, or application on the subject is pending in
any court of law up till Supreme Court.
…Counsel
NOTE:
1. Power of Attorney or
wakalatnama be filed along with the appeal.
2. The appellant signs
Wakalatnamana.
3. It’s should be
clearly mentioned whether it is the first, second, or third appeal before this
court is being filed.
4. The copies of the
judgment and decree, of the court below along with grounds of the plaint and
written statement, be attached.
5. All relevant documents
are necessary to be filed along with the civil appeal.
6. No need for an affidavit with the appeal.
7. Copy of notice U/O 43 Rule III CPC to the respondent may be attached.
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