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1992 DIGILAW 247 (ALL)

Nafees Ahmad v. District Judge, Kanpur Dehat, Kanpur

1992-02-20

P.P.GUPTA

body1992
JUDGMENT P.P. Gupta, J. - The petitioner, Nafees Ahmad, had obtained a patta from Gaon Sabha, Anguri on 9-2-1986 for a period of 10 years in respect of a pond situate in plot No. 198, measuring 24 Bigha for fishing purposes. On 23-9-1989 he dropped 35000 fish seeds in the said pond. Respondent No 3 started interfering in his rights on the basis of some illegal patta alleged to have been granted in his favour on 18-4-1989. The petitioner, therefore, filed a suit No. 199 of 1990 in the court of IInd Additional Civil Judge, Kanpur Dehat. Along with the aforesaid suit, an application supported by an affidavit for grant of temporary injunction was also moved. The said application for temporary injunction was however, rejected by the learned Civil Judge by bis order dated 9-4-1990 (Annexure 1 to the petition). The petitioner preferred an appeal before the District Judge, Kanpur Dehat, but his appeal was also dismissed on 13-9-1990 (Annexure `2'). 2. Feeling aggrieved from the said orders dated 9-4-1990, passed by the learned Civil judge, and 13-9-1990, passed by the learned District Judge, the petitioner has filed this petition. 3. A Full Bench of this Court in M/s. Jupiter Chit Fund (Pvt) Ltd v. Dwarka Dinesh Dayal, 1979 ALJ 658, after considering Section 115, C.P.C., has substituted altogether by U.P. Amendment Act No. XXXI, of 1978 with effect from 1.8.1978 enunciated that against the orders made in suits valued at less than Rs. 20,000 a revision lies only to the District Judges and against the orders of District Judge in revision, no revision lies to High Court. This aspect was affirmed by the Supreme Court in Vishesh Kumar v. Shanti Prasad, 1980 ALJ 411 and Vishnu Awatar v. Shiv Autar, 1980 ALJ 751. 4. 20,000 a revision lies only to the District Judges and against the orders of District Judge in revision, no revision lies to High Court. This aspect was affirmed by the Supreme Court in Vishesh Kumar v. Shanti Prasad, 1980 ALJ 411 and Vishnu Awatar v. Shiv Autar, 1980 ALJ 751. 4. A Full Bench of this Court in the case of Ganga Saran v. Civil Judge, Hapur, Ghaziabad and others, 1991 ALJ 139 after considering the aforesaid Full Bench decision of this Court and two decisions of the Supreme Court and also another decision of the Supreme Court in Qamruddin v. Rasul Baksh, 1990 AWC 3708 held that an appellate order passed by the District Court or an order passed by it is in exercise of its revisionary power conferred upon it by Section 115, C.P.C. (as amended by U.P. Amendment Act, 1978 is amenable to writ jurisdiction only if it is found from the order impugned that fundamental principle of law has been violated and further such an order causes substantial injustice to the party aggrieved. 5. The question whether an interim injunction should be granted or not is discretionary in nature, although the exercise of discretion is regulated by the principles set out in Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure. If the order of injunction is passed by a competent court having jurisdiction in the matter, it is not premissible for the High Court under Article 226 of the Constitution to quash the same by issuing a writ of certiorari. 6. In the instant case, it is not found from the order impugned that any fundamental principle of law has been violated and further that such an order has caused substantial injustice to the petitioner. Therefore, the impugned orders passed in the civil suit are not amenable to extraordinary jurisdiction of this Court in view of the above law laid down by the Full Bench in the case of Ganga Saran (supra). 7. Further a writ of mandamus cannot be issued to a private individual unless he is under a statutory duty to perform a public duty. The dispute involved in the instant case was entirely between two private parties, which could not be a subject matter of writ of mandamus under Article 226 of the Constitution. 8. 7. Further a writ of mandamus cannot be issued to a private individual unless he is under a statutory duty to perform a public duty. The dispute involved in the instant case was entirely between two private parties, which could not be a subject matter of writ of mandamus under Article 226 of the Constitution. 8. For the reasons given above, this is not a fit case for interference in extraordinary jurisdiction of this Court under Article 226 of the Constitution. Accordingly, the writ petition is dismissed at the stage of admission itself.