Court No. - 39
Case :- WRIT - C No. - 17502 of 2019 Petitioner :- Virendra Kumar Singh And 2 Others Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Sudhanshu Pandey Counsel for Respondent :- C.S.C.
Hon'ble B. Amit Sthalekar,J. Hon'ble Piyush Agrawal,J.
Heard Shri Sudhanshu Pandey, learned counsel for the petitioners, Shri Akhilesh Tripathi, for respondent nos. 5 to 8 and learned standing counsel for the State - respondent nos. 1 to 4.
The petitioners, in this writ petition, are seeking a direction to the respondents not to remove the construction of the petitioners without authority of law and not to interfere with the peaceful possession of the petitioners over their house and wall situated in Village - Rajput Neori, Ballia City, District - Ballia.
Briefly stated, the facts of the case are that the predecessor of respondent nos. 5 to 8 filed a Civil Suit No. 229 of 1973 for injunction and possession against the predecessor of the petitioners. The suit was decreed by judgement & decree dated 18.04.1977. The predecessor of the petitioners filed Civil Appeal No. 195 of 1977, which was also dismissed by judgement dated 18.02.1984. Thereafter, one of the defendants, Prabhu Nath Singh, the predecessor of the petitioner no. 3, filed Misc. Case No. 41 of 1984 under Order IX, Rule 13 of CPC for recalling the judgement of the appellate court dated 18.02.1984 and this application was dismissed on 13.12.1988. Against that order, Prabhu Nath Singh, the predecessor of petitioner no. 3, filed Misc. Appeal No. 248 of 1988, which was allowed by judgement & order dated 09.01.1992 setting aside the judgement & decree dated 18.04.1977 passed in Civil Suit No. 229 of 1973. The result is that Civil Suit No. 229 of 1973 has been revived and is stated to be still pending.
Aggrieved by the judgement & order dated 09.01.1992, the predecessor of the respondent nos. 5 to 8 filed Writ Petition No. 11844 of 1992 and the High Court was pleased to stay the operation of the order dated 09.01.1992 by order dated 09.04.1992. Thereafter, the said writ petition was dismissed for want of prosecution on 11.02.2010 and on a restoration application being filed on 01.03.2013, Writ Petition No. 11844 of 1992 was restored and that writ petition was, thereafter, converted into Matters Under Article 227 of the Constitution of India No. 6427 of 2017. This petition was also dismissed on 15.05.2018, but the Court, by order dated 15.05.2018, on the request of the counsel for the respondents, i.e., the petitioners herein, directed that the suit be decided expeditiously, in accordance with law. The suit is still pending.
What we find from the facts of the case is that the original decree was against the petitioner nos. 1, 2 & 3 and the restoration application was filed only by the predecessor of the petitioner no. 3. Therefore, so far as petitioner nos. 1 & 2 are concerned, the original decree has become final and even if it has been set aside in Matters Under Article 227 of the Constitution of India No. 6427 of 2017, the original suit stands revived, only so far as petitioner no. 3 is concerned.
Learned counsel for the petitioners, however, states that the respondents are interfering with the possession of the petitioners and therefore, a restraint order may be passed by this Court.
In our opinion, the writ petition, so far as petitioner nos. 1 & 2 are concerned, would not be maintainable, since the original decree of 18.04.1977 has already become final and the suit is now pending only so far as petitioner no. 3 is concerned. However, if the petitioner nos. 1 & 2, as also petitioner no. 3, have any grievance, they may approach the appropriate civil court for redressal of their grievances.
The writ petition is, accordingly, dismissed.
Order Date :- 30.5.2019 Amit Mishra