Court No. - 10
Case :- WRIT - C No. - 10776 of 1994 Petitioner :- Radhey Shyam Respondent :- A.D.J.
Counsel for Petitioner :- S.K. Dubey,Niraj Tiwari Counsel for Respondent :- S.C.,Anirudh Upadhaya,Anurudhy Upadhaya,Niraj Tewari,Sheo Prakash Singh
Hon'ble Mahesh Chandra Tripathi,J.
(Order on Civil Misc. Delay Condonation Application No.254127 of 2014; Civil Misc. Restoration Application No.254130 of 2014 and Civil Misc. Amendment Application No.237519 of 2015) The restoration application has been filed for recalling the order dated 15.10.2009 by which the writ petition was dismissed in default.
I have heard learned counsel for the parties.
In view of the avernments made in the affidavit filed in support of the application the delay is condoned. The delay condonation application and restoration application are allowed. The order dated 15.10.2009 is recalled and the Writ Petition is restored to its original number.
Learned counsel for the respondents has raised objection regarding maintainability of the writ petition on the ground that 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, the present petition under Article 226 of the Constitution of India is not maintainable.
Confronted with this situation, learned counsel for the petitioner submits that he has already moved an Amendment Application No.237519 of 2015 and the same is on record.
The petitioner is assailing the validity of the impugned order dated 26.1.992 passed by the second respondent, Munsif, Shahganj, District Jaunpur by which he had rejected the temporary injunction application (6C) filed in Civil Suit No.1223 of 1991 (Radheyshyam vs. Jhallar) as well as the order dated 10.11.1993 passed by the first respondent, Additional District Judge, Jaunpur whereby he had dismissed the Civil Appeal No.48 of 1992 (Radheyshyam vs. Jhallar) and affirmed the order of the trial Court dated 21.1.1992.
In view of judgement of Hon'ble Apex in Radhey Shyam's case the present writ petition as has been framed and drawn, cannot be entertained by this Court and the writ petition is liable to be dismissed on this score itself.
Confronted with this situation, learned counsel for the petitioner lastly contends that the matter is pending since the year 1994 and once the Court has declined to interfere in the matter in view of the judgement of Hon'ble Apex Court in Radhe Shyam's case, the amendment application may be allowed and the direction may be issued to the trial Court to finalize the proceeding of the aforesaid within stipulated time.
The amendment application is allowed. Let necessary amendment be carried out forthwith.
In view of the above, without expressing any opinion on the merits of the issue and considering the facts and circumstances of the case, this writ petition is disposed of finally, with a direction to the trial court to expedite the proceeding of the aforesaid suit and finalize the same without granting any unnecessary adjournment to either of the parties.
Order Date :- 27.11.2018 cks