Court No. - 21
Case :- WRIT - C No. - 2694 of 2019 Petitioner :- Avinish Dwivedi Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Arun Kumar Tiwari Counsel for Respondent :- C.S.C.,Pradeep Kumar Tripathi
Hon'ble Pradeep Kumar Singh Baghel,J. Hon'ble Pankaj Bhatia,J.
Sri Padmakar Pandey, learned counsel for respondent nos. 2, 3 & 4 has raised a preliminary objection regarding maintainability of the writ petition on the ground that for the same cause of action previously the petitioner has approached this Court by way of Civil Misc. Writ Petition No. 26588 of 2018 which has been dismissed on 7.8.2018. The relevant part of the judgment reads as under:
"The petitioner was allotted the house in dispute, on 31.4.2003. A sale deed was also executed in 2003 itself. Thereafter, it appears that the petitioner executed an agreement to sell in favour of respondent no.5 and, as stated in the agreement, also handed over possession of the house in dispute, to respondent no.5. Counsel for the petitioner submits that the petitioner never signed the agreement and the agreement is a forged document. Admittedly, a suit between respondent no.5 and the petitioner is pending before the Civil Court and the agreement in question, is subject matter of the said suit. These all facts clearly show that in 2003 itself, possession of the house in dispute, was taken by the petitioner though formal letter of possession was issued subsequently.
In the circumstances, this petition cannot be entertained and is dismissed as such. This order shall not preclude the respondents from taking appropriate action in respect of the house in question, if they so desire and are advised."
The present writ petition has been filed for the same relief. Learned counsel for the petitioner submits that while dismissing the writ petition this Court has directed the respondents for taking appropriate action but they have not taken any action hence a fresh cause of action has been arisen thus the instant writ petition is maintainable.
We have heard learned counsel for the parties and perused the material on record.
A careful reading of the order of this Court dated 7.8.2018 shows that this Court has dismissed the writ petition of the petitioner on the ground that a civil suit is pending between the parties. However, the Court has left it open that the respondents may take appropriate action if they are advised. We do not find that any direction has been issued to the respondents which they have not complied with. Thus, we are of the view that the second writ petition for the same cause of action is not maintainable in view of Chapter XXII, Rule-7 of the Allahabad High Court Rules, 1952.
For the aforesaid reasons we dismiss the writ petition as not maintainable. We leave it open for the petitioner to take recourse to such remedy which is available to him under the law.
No order as to costs.
Order Date :- 24.1.2019 Digamber