Court No. - 18
Case :- MATTERS UNDER ARTICLE 227 No. - 2748 of 2016 Petitioner :- Krishna Kumar And Others Respondent :- Smt. Kamla Devi And Another Counsel for Petitioner :- G.K. Gupta,Darshana Vatsa Counsel for Respondent :- S.C.,Pradeep Kumar Rai
Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the parties.
Cause shown in the affidavit accompanying the restoration application is sufficient. The application is allowed. The order dated 03.07.2018 dismissing the writ petition for want of prosecution is recalled. The writ petition is restored to its original number.
The defendant-petitioners are before this Court assailing the order dated 30.10.2012 (so far as it relates to decision of issue no.2 and 3 only) as well as order dated 12.2.2013 as passed in Case No.1183 of 2012 (Kamla Devi & Anr. v. Krishna Kumar & Ors.) with all its consequential effects and also for a direction to Civil Judge (SD), Varanasi to decide the preliminary objections of defendant-petitioners i.e. issue no.2, 3, 4 and 9 first as afresh in the light of Amin's report as well as objection raised by petitioners.
The writ petition had been entertained by this Court on 27.2.2013 and the Court has passed the following interim order:-.
"Issue notice pending admission.
Issue of jurisdiction on the ground that property in dispute is agricultural has been refused to be decided as preliminary issue. Applicability of Section 331-A of U.P.Z.A. & L.R. Act on the facts of which case will have to be seen. Petitioners are defendants in O.S. No.1183 of 2012 in which they raised question of jurisdiction. Learned counsel for the petitioners has placed on record photostat copy of certified copy of order dated 18.09.2012 passed by the trial court/ Civil Judge (S.D.), Varanasi granting temporary injunction to the plaintiff.
As plaintiff respondent has already got temporary injunction order in his favour hence it is directed that until further order further proceedings of O.S. No.1183 of 2012 shall remain stayed."
Shri Pradeep Kumar Rai, learned counsel for the plaintiff- respondents raised an objection that the present writ petition was not maintainable in view of the law settled by the Apex Court in its judgment dated 26.2.2015, passed in Civil Appeal No. 2548 of 2009 connected with Special Leave Petition ( C) No. 25828 of 2013, Radhey Shyam and another Vs. Chhabi Nath and others, that judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution of India, which has been followed by this Court in Writ Petition No. 11761 of 2015 Thakur Prasad Vs. Beni Prasad (now deceased) and others, decided on 25.3.2015. Only in this backdrop, the petitioner just for maintaining the present writ petition has filed amendment application and no doubt the same has been allowed. But the objection so raised by the defendant -petitioners by means of present writ petition can very well be dealt with by the trial court, which has framed 11 issues. The matter is unnecessarily engaging the attention earlier in the garb of Art.226 and now under Art.227 of the Constitution of India and as such this Court should not come for rescue and reprieve of the defendant-petitioners.
The Court has proceeded to examine the record in question and find that the trial court has already framed issues way back on 30.10.2012 and whatever the objection has been raised by means of present writ petition, the same can very well be looked into, examined and remedied by the trial court and as such the Court find substance in the objection raised by learned counsel for the respondents. The Court is not inclined to interfere in the matter under Art.227 of the Constitution of India.
Once the Court has declined to interfere in the matter, learned counsel for the petitioners states that trial court may be directed to decide the suit in question expeditiously.
Considering the facts and circumstances of the case and without expressing any opinion on the merits of the issue, the writ petition stands disposed of finally with a direction to the trial court to consider and decide the suit in question in accordance with law expeditiously and preferably within a period of two years from the date of production of certified copy of this order but certainly after giving opportunity to the parties concerned and without granting unnecessary adjournments to either of the parties, except upon payment of cost.
Order Date :- 19.9.2018 SP/