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2014 DIGILAW 3194 (ALL)

Ram Surat Verma v. Jhinku

2014-10-17

ATTAU RAHMAN MASOODI

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JUDGMENT Attau Rahman Masoodi,J. Heard learned counsel for the petitioners. 2. By means of this writ petition the petitioners have prayed for following reliefs: - "(a) Issue a writ, order or direction in the nature of mandamus commanding the respondent Nos.2 to 6 to remove the illegal possession/ encroachment of the defendant-respondent No.1 made by him during the pendency of suit with immediate effect. (b) Issue a writ, order or direction in the nature of mandamus commanding the respondent Nos.2 to 6 to comply the injunction order dated 17.09.2005 passed by Civil Judge (Junior Division), Basti in Suit No.631 of 2005 (Ram Surat and another Vs. Jhinku) with immediate effect strictly in accordance with law. (c) Issue any other writ, order or direction in favour of the petitioners, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case. (d) Award the costs of petition in favour of the petitioners." 3. Learned counsel for the petitioners while arguing the relief prayed for as above has placed reliance upon the order dated 17th September, 2005, whereby in a suit filed by the petitioner for permanent injunction against the respondent no.1, an interim injunction was granted by the trial court. Learned counsel for the petitioner submits that the interim injunction order passed by the trial court has operated throughout and in the teeth of the order passed by the trial court some construction of boundary wall has been made by the respondent no.1-defendant. The interim injunction order passed by the trial court was granted exparte. From the perusal of record, it is evident that the notices have also been issued and the defendant has put in appearance in the suit proceedings and has also filed written statement before the court below. After putting in appearance it cannot be said that the respondent is unaware of the trial court order. 4. The writ petition is filed on the premise that the interim injunction order passed by the trial court has been violated by the defendant i.e. respondent no.1 herein by raising a wall on 12.10.2014 and the information thereof was immediately tendered to the District Magistrate and the concerned police authorities through registered post on 13.10.2014. The photographs placed on record demonstrate that boundary wall next to the petitioner's house has been raised nearly 4-5 feet high. 5. The photographs placed on record demonstrate that boundary wall next to the petitioner's house has been raised nearly 4-5 feet high. 5. The petitioner has alternative remedy of filing contempt proceedings under Order 39 Rule 2A CPC. Therefore, this writ petition for the prayers made herein above may not be maintainable. 6. Learned counsel for the petitioner has strongly placed reliance upon the judgments passed by this Court in Smt. Jagannathiya v. State of U.P. & Ors., 2006 (3) AWC 2600 and Harpal & Anr. v. State of U.P. & Ors., 2005 (98) RD 364 . Once the petitioner has an alternative remedy open to him under the Code of Civil Procedure, a petition under Art.227 of the Constitution of India is not warranted, unless trial court fails to carry out its obligations to pass appropriate orders on the petitioner's application provided for under the law. 7. Since the petitioner is yet to approach the civil court for an appropriate remedy, prayers made in the writ petition cannot be granted by this Court. The judgments placed reliance upon in such a situation are not of any help to the petitioner. 8. The writ petition is hereby dismissed. However, it is open to the petitioner to approach the appropriate court for redressal of his grievance. In case the petitioner files an application under Order 39 Rule 2A CPC, the same shall be considered expeditiously in accordance with law.