Devendra Kumar Gupta v. District Judge, Lucknow/Addl. District Judge Court No. 1
2014-11-13
DEVENDRA KUMAR UPADHYAYA
body2014
DigiLaw.ai
JUDGMENT Devendra Kumar Upadhyaya,J. Heard learned counsel for the petitioners and learned counsel for the opposite party no.1. 2. Under challenge in this petition filed under Article 226 of the Constitution of India is an order dated 15.09.2014 whereby appeal preferred by the opposite party no.2 has been admitted and the order dated 06.08.2014 passed by the learned trial court has been stayed. 3. The facts, which are necessary for adjudication of the issue raised by learned counsel for the petitioners in this case, are that on 06.03.2000 the opposite party no.3 is said to have executed an agreement to sale in favour of mother of the petitioners in respect of the property in dispute. However, after executing the said agreement in favour of mother of the petitioners, a sale deed in respect of the same property was executed by the opposite party no.3 in favour of opposite party no.4 on 21.07.2000. Thereafter, opposite party no.3 executed another sale deed in favour of one Ram Baran on 19.08.2000. 4. Since agreement to sale was dishonored, a suit for specific performance by the petitioners' mother was instituted on 11.12.2001 wherein the opposite party no.4, on an application, got himself impleaded as one of the defendants. In the said suit, on 17.09.2002 an order of injunction for maintaining status-quo was granted by the learned trial court. During pendency of the suit, opposite party no.4 is said to have parted with the property in suit by executing the sale deeds in favour of one Smt Satya Bhama Dubey and Smt Shubhawati Tripathi on 11.03.2002. The suit filed by the petitioners was decreed on 13.09.2005. 5. On 03.07.2010, as has been alleged by learned counsel for the petitioners, opposite party no.2 purchased the property in suit from Smt Satya Bhama Dubey and Smt Shubhawati Tripathi and thereafter opposite party no.2 moved an application on 16.08.2011 under Order 9 Rule 13 of CPC for setting aside the judgement and decree dated 13.09.2005. The said application was rejected by the learned trial court by means of order dated 06.08.2014. 6.
The said application was rejected by the learned trial court by means of order dated 06.08.2014. 6. It is against the aforesaid order dated 06.08.2014, whereby application moved by the opposite party no.2 for restoration of the suit and setting aside the judgement and decree dated 13.09.2005 has been rejected, that the appeal has been filed by the opposite party no.2 which, by the impugned order, has been admitted by the learned appellate court and the order of the learned trial court dated 06.08.2014 has been stayed. 7. Submission of learned counsel for the petitioners is that since the opposite party no.2 was not a party in the suit, as such any application for restoration or any appeal against the order rejecting the application for restoration is not maintainable. 8. Submission of learned counsel for the petitioners appears to be not so sound as to call for any interference by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India for the simple reason that right of appeal is a statutory right and is a valuable right conferred on a party. 9. For the purpose of admission of an appeal, under Order 41 Rule 11 of CPC, a discretion has been vested in the learned appellate court to dismiss the appeal or admit it for the purpose of decision on merits. However, it is noteworthy at this juncture that right of first appeal is a very valuable right and ordinarily such a statutory valuable right should not be denied to the party concerned. 10. Accordingly, I do not see any illegality in the impugned order so far as it admits the appeal filed by the opposite party no.2. 11. Moreover, I may also observe that the order under challenge is purely an interlocutory order and hence, the exercise of jurisdiction under Article 226 of the Constitution of India is not warranted. The writ petition is accordingly dismissed. 12. At this juncture learned counsel for the petitioners has submitted that the petitioners have been litigating the matter for a long period of about 14 years, an appropriate direction may be issued to the learned appellate court to expedite the proceedings of the appeal. 13.
The writ petition is accordingly dismissed. 12. At this juncture learned counsel for the petitioners has submitted that the petitioners have been litigating the matter for a long period of about 14 years, an appropriate direction may be issued to the learned appellate court to expedite the proceedings of the appeal. 13. Accordingly, considering the innocuous nature of prayer being made by learned counsel for the petitioners, learned appellate court below is directed to expedite the proceedings of the appeal and conclude the same within a period of six months from the date of production of certified copy of this order. 14. It is also made clear that no unnecessary adjournment shall be granted by the learned court below to the parties in appeal except in extraordinary circumstances, that too, by passing a reasoned order, if any adjournment is prayed for.