Heard Sri Purusottam Awasthi, learned counsel for petitioner and Sri Yogesh Kesarwani as well as Sri Ravi Prakash Yadav, learned counsel appearing on behalf of opposite parties.
The present petition has been filed for a direction to District Judge, Unnao for expeditious disposal of transfer application registered as Miscellaneous Case No.368 of 2019 pending since 29.8.2019.
Further prayer for direction to opposite parties no.3 and 5 for maintaining status quo over the disputed property has also been made. Earlier this Court vide interim order dated 17.9.2019 has passed the following order:-
"Supplementary affidavit annexing the alleged power of attorney executed by Karuna Shankar Shukla in favour of Sri Sanjay Shukla has been filed which is taken on record.
A copy of the petition has been given to Sri Ravi Prakash Yadav, Advocate who is said to have filed a caveat on behalf of Vimal Kant, opposite party no.3. He also intends to file vakalatnama for opposite party no.2.
The contention of the petitioner is that taking advantage of the ongoing strike in the Civil Court at Unnao and also the fact that the Civil Court (J.D.), North, Unnao, is vacant which led to filing of a transfer application by the petitioner which has remained pending unjustifiably, the opposite parties are raising construction over the land in question. If the Court where the suit and temporary injunction application is pending is vacant since May 2019 and such report has also come to the District Judge, who even otherwise would be aware about the vacancy, it is inexplicable as to how on such a trivial issue the matter is pending before the District Judge, Unnao.
Let the District Judge, Unnao submit a report by the next date.
Let dasti notice be issued to the petitioner for service upon opposite party nos.2 to 5.
List this case on 26.9.2019 as fresh before the appropriate Court.
Considering the fact that the Court is vacant, till the next date the opposite party shall not raise any construction over the land in dispute subject, however, to the condition that if ultimately the claim of the petitioner fails, they would be liable to make good the loss to the private opposite parties, as a litigant cannot be left remedyless in such circumstances.
The matter shall not be adjourned on the next date at the behest of the petitioner and the interim order shall not be extended, if any adjournment is sought.
The District Judge may proceed with the transfer proceedings in accordance with law unhindered by the pendency of this petition."
Today the petitioner has filed an affidavit of service of dasti notices which is taken on record. Short counter affidavit filed on behalf of opposite parties no.2, 3 and 5 is also taken on record.
It has been submitted by learned counsel appearing for opposite parties on the basis of averments made in the short counter affidavit that the opposite parties have already appeared in the transfer application and are not objecting transfer of the suit in question as has been indicated in para 10 of the short counter affidavit.
In view of aforesaid fact, there is no occasion to keep the petition pending and is accordingly disposed of with direction to District Judge, Unnao to decide the transfer application registered as Miscellaneous Case No.368 of 2019 (Shri Bhagwati Ji Rajrajeshwari Mandir Trust vs. Anil Kumar and Another.). Since, the opposite parties have already given their consent for transfer application, the transfer application as such may be decided, expeditiously, preferably within a period of two months from the date a certified copy of this order is produced before opposite party no.1.
In view of peculiar circumstances of the case, protection was granted by this Court earlier vide order dated 17.09.2019 which is as follows:-
"Considering the fact that the Court is vacant, till the next date the opposite party shall not raise any construction over the land in dispute subject, however, to the condition that if ultimately the claim of the petitioner fails, they would be liable to make good the loss to the private opposite parties, as a litigant cannot be left remedyless in such circumstances."
In view of peculiar facts and circumstances, it is provided that till the application under Order 39 Rule 1 and 2 C.P.C pending in the suit in question is decided by the appropriate court, the protection granted vide order dated 17.9.2019 shall continue.
With the aforesaid directions, the writ petition stands disposed of.
It is made clear that application under Order 39 Rule 1 and 2 C.P.C. shall be decided independently without considering any observation made by this Court in the present order as well as interim order dated 17.9.2019 which has been passed in exigency of circumstances.
Order Date :- 26.9.2019 Subodh/-