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2011 DIGILAW 2395 (RAJ)

Kishan Lal v. Addl. Civil Judge (J. D) Alwar

2011-11-09

MAHESH BHAGWATI

body2011
JUDGMENT 1. - Learned counsel for the respondents submits that the writ petition may be heard finally at the admission stage. 2. Learned counsel for the petitioner does not object to it. 3. In view of above, the learned counsel for the respondents does not press the application No.22675 dated 5/5/2011 filed under Article 226(3) of the Constitution of India for vacation of ex-parte interim order dated 11th March 2011. Hence, the same stands dismissed as not pressed. 4. Challenge in this writ petition is to the order dated 19th November, 2011 whereby the learned Executing Court ordered to initiate the proceedings against the petitioner-judgement debtor under Order 21, Rule 32 of CPC. 5. Having heard the learned counsel for the parties and carefully perused the relevant material on record including the impugned judgments rendered by the Courts below, it is noticed that a suit for permanent injunction came to be filed by the respondent No.2, against the petitioners which after conclusion of trial, stood decreed in favour of the respondent No.2 and against the petitioner-defendant, vide judgment dated 31st October, 2007. Aggrieved with the judgment and decree of the learned trial Court, the petitioner-defendant preferred an appeal and the learned Additional District Judge No.2, Alwar dismissed the appeal also. The appellate Court made modification in the judgment and decree passed by the learned trial Court to the extent that the size of the plot should be treated to be 18X9 Ft. instead of 33X38 Ft. as shown in the decree. Dissatisfied with the judgment of the first appellate Court, the petitioner-defendant filed the second appeal which has been pending before the High Court. In the meantime, the respondent No.2 decree-holder filed an execution before the learned Executing Court and having heard the respondent No.2 as also the petitioner-defendant, the Executing Court deemed just and proper to initiate the proceedings under Order 21, Rule 32 of CPC, against the petitioner-defendant. 6. Learned counsel for the petitioner canvassed that he had been in possession of the disputed plot since beginning and the learned trial Court restrained the respondent No.2 decree holder from dispossessing sans observing due process of law. Thus, the impugned order passed by the learned Executing Court is totally arbitrary and sans assigning any cogent reason it has ordered to initiate the proceedings against him under Order 21, Rule 32 of CPC. Thus, the impugned order passed by the learned Executing Court is totally arbitrary and sans assigning any cogent reason it has ordered to initiate the proceedings against him under Order 21, Rule 32 of CPC. Hence, the impugned order deserves to be set aside. 7. E-converso, the learned counsel for the respondent-plaintiff contended that right from the beginning he has been in possession of the disputed property and it is he who filed the suit for permanent injunction imploring the Court to restrain the petitioner-defendant from dispossessing him of the disputed plot. 8. The crucial question which springs for consideration in the instant writ petition is as to whether the petitioner has got a right to invoke the extra-ordinary jurisdiction under Article 227 of the Constitution when the second appeal has already been pending before the High Court against the impugned judgment rendered by the two Courts below? 9. The second question which is also equally important and arises for consideration is as to whether the petitioner-defendant can raise the question of possession under Article 227 of the Constitution when the two courts below have already given finding in this regard based on facts and further the second appeal has already been pending in the High Court. 10. At the very outset, it is relevant to record that the Hon'ble Apex Court has consistently held in plethora of cases that the extra-ordinary jurisdiction under Article 227 of the Constitution should be invoked by the High Court only when the impugned order is found to be perverse, contrary to material and it results in manifesting injustice. The Hon'ble Apex Court has also held in umpteen cases that the pure finding of facts should not be upset by the High Court invoking extra-ordinary jurisdiction under Article 227 of the Constitution. Undeniably and undisputedly, the petitioner-defendant is found to have been aggrieved with the judgment and decree rendered by the learned trial Court and he preferred a first appeal which stood dismissed by the learned Additional District Judge No.2, Alwar. Being dissatisfied with the judgment of the first appellate Court also, he preferred second appeal and that has been pending in the High Court. If the respondent No.2-plaintiff filed an execution before the Executing Court, the bounden duty of the petitioner-defendant was to file an application before the second appellate Court where the second appeal has been sub-judice. Being dissatisfied with the judgment of the first appellate Court also, he preferred second appeal and that has been pending in the High Court. If the respondent No.2-plaintiff filed an execution before the Executing Court, the bounden duty of the petitioner-defendant was to file an application before the second appellate Court where the second appeal has been sub-judice. Instead of availing the proper remedy under law, he has endeavoured to abuse the process of law. The impugned order is not found to be perverse from any stretch of imagination nor is it found to be contrary to material on record. Both the learned trial Court as also the first appellate Court have categorically observed that the respondent No.2-plaintiff was in possession of the disputed plot and that was the reason the petitioner-defendant was restrained from making any obstruction in the peaceful use of the plot by the respondent No.2-plaintiff. The petitioner-defendant has chosen to invoke extra-ordinary jurisdiction of the High Court under Article 227 of the Constitution, whereas the second appeal has already been pending in the High Court. In such a state of affairs, invoking extra-ordinary jurisdiction by the petitioner Under Article 227 is apparently an abuse of the process of the Court, which cannot be permitted by the Court. Hence, the writ petition, in view of above, deserves to be dismissed with exemplary cost. 11. For the reasons stated above, the writ petition fails and the same being bereft of any merits stands dismissed with the cost of Rs. 5,000/- to be deposited in the Legal Aid Fund. 12. Consequent upon the dismissal of the writ petition, the stay application does not survive and the same also stands dismissed.Petition Dismissed with Cost Rs. 5,000/-. *******