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2013 DIGILAW 1124 (PAT)

Arun Kumar Jha v. Pushpa Choudhary

2013-09-16

CHAKRADHARI SHARAN SINGH

body2013
ORDER Heard Ms. Sushmita Mishra, learned counsel for the petitioners. 2. The petitioners are aggrieved by an order dated 30.10.2007 passed by learned District Judge, Munger, in Miscellaneous Appeal No. 01/2007 whereby he has affirmed an order dated 05.12.2006 passed by learned Munsif-I, Munger, in Title Suit No. 28/2006. By the order dated 15.12.2006 passed in Title Suit No. 28/2006, learned Munsif-I, Munger had granted injunction in favour of the Respondents 1st party, who are the plaintiffs before the trial Court; directing the petitioners / defendants not to disturb the business of brick-kiln over the suit property as described in Schedule to the plaint. 3. Before I come to the merits of the case and submissions made on behalf of the petitioners, it would be apt to take note of certain dates. After the Title Suit being Title Suit No. 28 of 2006 was filed in the year 2006, the plaintiffs / respondents filed an application under Order XXXIX Rule I of the Code of Civil Procedure which was allowed by an order dated 15.12.2006. Against the said order a Miscellaneous Appeal was preferred by the petitioners vide Miscellaneous Appeal No. 01/2007. The Appeal was however, dismissed on 30.10.2007 by the Court of learned District Judge, Munger. It seems that the petitioners thereafter, filed a Civil Revision before this Court vide C.R. No. 296 of 2008. In view of the certain developments on the question of maintainability of the Civil Revision, vide an order dated 22.07.2010 passed by this Court in C.R. No. 296/2008, the petitioners were directed to convert the Civil Revision into a writ petition under Article 227 of the Constitution of India within three weeks, with the stipulation that if it was not done so within three weeks, the Civil Revision shall stand rejected. The petitioners did not take steps and by virtue of the peremptory order, the said C.R. No. 296 of 2008 stood dismissed. Thereafter, restoration application vide M.J.C. No. 1566 of 2011 was filed by the petitioners which was allowed vide order dated 06.07.2011 and the time for compliance of the order dated 22.07.2010 was extended by two weeks from the date of order passed in M.J.C. 1566 of 2011, i.e. 06.07.2011. It appears that even this order dated 06.07.2011 was not complied and thus the said Civil Revision No. 296 of 2008 could not be restored to its original file. It appears that even this order dated 06.07.2011 was not complied and thus the said Civil Revision No. 296 of 2008 could not be restored to its original file. Thereafter, this application under Article 227 of the Constitution of India was filed and was registered as C.W.J.C. No. 17515 of 2012. Evidently, the injunction order which was passed on 15.12.2006 has remained operative for nearly seven years as of now. 4. The laches on the part of the petitioners are apparent and this court would refuse to exercise its discretion under Article 227 of the Constitution of India if the party is not found to be diligent in pursuing his matter. This is one aspect. 5. As has been noted above, there is concurrent finding by two Courts on the point of prima facie case and balance of convenience for the purpose of grant of injunction. The orders have been passed after taking into account in detail the pleadings of the respective parties. The correctness of such order cannot be gone into by this Court in a proceeding under Article 227 like an Appellate Court. This Court can interfere with such orders only if it is found that exercise of jurisdiction or discretion is patently illegal and grossly unjust. Where two views are possible and one has been taken by the subordinate Court, this Court in exercise of supervisory jurisdiction is not required to look into the correctness or otherwise of such orders. 6. Learned counsel for the petitioners has submitted that the Court below while granting injunction in favour of the Respondents No. 1 and 2 has wrongly shifted the burden of proving prima facie case against the petitioners which duty was heavy upon plaintiffs / respondents. However, I am of the view that the Courts below have gone into the facts in its entirety. In any view of the matter, as the order of injunction has remained operative for nearly last seven years, I am not inclined to look into the correctness or otherwise of the orders. 7. This application is accordingly dismissed.