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2014 DIGILAW 2492 (ALL)

Motilal [U/A 227] v. District Judge Unnao, Unnao

2014-08-13

DEVENDRA KUMAR UPADHYAYA

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JUDGMENT Devendra Kumar Upadhyaya,J. Heard learned counsel for the petitioner and Sri Manish Kumar, learned counsel appearing for the respondent nos. 1 and 2. 2. This petition by the petitioner-plaintiff has been filed with the prayer to direct the District Judge, Unnao and Additional District Judge, Unnao to decide the Appeal No. 31 of 2013 within the time to be stipulated by this Court. 3. The petitioner-plaintiff preferred a suit for permanent injunction before the court below wherein ad interim injunction order was passed on 26.11.2011 by the learned court below directing the defendants not to interfere in the peaceful possession of plot no. 143 kha having an area of 0.506 hectare, situate in village Jangle Bujurg, Pargana Bhagwantnagar, Tehsil Bighapur, District Unnao. 4. When the aforesaid ad interim order was not being complied with, the petitioner approached this Court by way of filing Writ Petition No. 3732 (M/S) of 2013 which was disposed of by this Court on 31.05.2013 with the observation that court below was fully empowered to ensure compliance of its orders. In the said order, it has been further observed that the petitioner may move appropriate application under Section 151 CPC before the court concerned raising his grievance. In case any such application is moved, the learned court below shall pass appropriate order to ensure that its order is complied with in letter and spirit. Thereafter, it appears that pursuant to the order dated 31.05.2013 the petitioner moved an application dated 05.07.2013 purportedly under Section 151 CPC. The said application before the court below has been registered as Application No. 53 ga. On the application moved by the petitioner before the court below under Order 39 Rule 1 & 2 CPC, objections were filed by the defendants and the said application was registered as Application No. 5 ga. Both the aforesaid applications were taken up together and decided by a composite order passed by the learned court below on 18.07.2013. While granting interim order, the defendants were directed to maintain status quo in respect of nature and possession of the land in suit and further that the defendants shall not change the same. Another direction was also issued to the Station House Officer, Bihar, District Unnao that he shall ensure the status-quo to be maintained in terms of the order passed by the learned court below by the parties concerned. 5. Another direction was also issued to the Station House Officer, Bihar, District Unnao that he shall ensure the status-quo to be maintained in terms of the order passed by the learned court below by the parties concerned. 5. Against the aforesaid order dated 18.07.2013 passed by the learned court below, defendants have preferred an Appeal which has been registered as Misc. Appeal No. 31 of 2013. The instant writ petition at the instance of plaintiff has been filed to expedite the proceedings of Appeal presently pending before the court of Additional District Judge, Unnao. 6. On a query being put to learned counsel for the petitioner as to in a situation like the one in the instant case and also keeping in view the attending circumstances of the case where the petitioner, who is plaintiff, is already armed with an interim injunction order passed by the learned court below and also an order to the local police to ensure compliance of the said interim order, why the proceedings of the appeal be expedited, learned counsel for the petitioner has cited a judgement of the Hon'ble Apex Court in the case of Puran Singh and others vs State of Punjab and others reported in (1996) 2 SCC 205 and has submitted that while exercising the jurisdiction under Article 227 of the Constitution of India, this Court is empowered to issue appropriate direction for expediting the proceedings of the appeal. 7. Having heard the arguments made by learned counsel for the petitioner and after going through the records of the case as also the judgement cited by learned counsel for the petitioner, this Court is of the considered opinion that at the instance of the petitioner no orders for expediting the proceedings of the appeal, which has been filed only in the year 2013, can be passed. 8. At this juncture, learned counsel for the petitioner submits that since the appeal itself filed by the defendants is not maintainable against the order dated 18.07.2013, therefore, this Court can issue direction not only to expedite the proceedings of the appeal but even can quash the proceedings of appeal pending before the learned appellate court below. 9. 8. At this juncture, learned counsel for the petitioner submits that since the appeal itself filed by the defendants is not maintainable against the order dated 18.07.2013, therefore, this Court can issue direction not only to expedite the proceedings of the appeal but even can quash the proceedings of appeal pending before the learned appellate court below. 9. To emphasis the aforesaid argument that since appeal filed by the defendants is not maintainable before the appellate court, learned counsel for the petitioner has drawn attention of this Court to a judgement rendered by the Hon'ble Apex Court in the case of Kishore Kumar Khaitan and another vs Praveen Kumar Singh reported in (2006) 3 SCC 312 and has submitted that the Hon'ble Apex Court in the said case has held that jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction, but when a court asks itself a wrong question or approaches the question in an improper manner, even it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution of India. 10. So far as the aforesaid ratio enunciated by the Hon'ble Apex Court in the aforesaid judgement of Kishore Kumar Khaitan and another vs Praveen Kumar Singh (supra) is concerned, there cannot be any dispute. However, in the facts and circumstances of the present case, the said judgement is absolutely inapplicable. 11. I am afraid, I can not agree with the submission made by learned counsel for the petitioner for the simple reason that the order under challenge before the appellate court is an order passed under Order 39 Rule 1 & 2 CPC, which, in view of the provisions contained in Order 43 Rule 1 (r) CPC is expressly appellable. Such a contention raised by learned counsel for the petitioner is misconceived and merits rejection. 12. Taking into account the aforesaid facts and circumstances of the case, no interference in this petition is warranted,which, accordingly is hereby dismissed. 13. However, there will be no order as to costs.