Allahabad High Court
Smt.Prema vs Shailendra Dev Dubey on 9 August, 2023
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:160368
Court No. - 1
Case :- MATTERS UNDER ARTICLE 227 No. - 6830 of 2023
Petitioner :- Smt.Prema
Respondent :- Shailendra Dev Dubey
Counsel for Petitioner :- Saurabh Raj Srivastava
Counsel for Respondent :- Ramesh Chandra Agrahari
Hon'ble Jayant Banerji,J.
1. Heard Shri Saurabh Raj Srivastava, learned counsel for the petitioner and Shri Ramesh Chandra Agrahari, learned counsel for the defendant-respondent.
2. This petition has been filed seeking the following relief:
"A. To issue order or direction, setting aside the impugned order dated 16.05.2023 passed by Additional District Judge, Court No. 21 Allahabad in Civil Revision No 46 of 2019 Smt. Prema Vs Shailendra Dev Dubey arising out of O.S. No. 474 of 2019 Smt. Prema W/o Harish Chandra Yadav Vs Shailendra Dev Dubey,
B. To issue order or direction, directing the defendant/respondent not to evict petitioner from the disputed arazi No. 795 situated in Village Andawan, Pargana Jhunsi, Tehsil Phoolpur, District Allahabad and he may also be restrained from raising any sort of construction over the property in question or from changing the nature of the property in question in any manner till the disposal of interim injunction application on merits.
C. To issue order or direction, directing Additional Civil Judge (Sr. Div.), Court, Allahabad to here and decide interim injunction application numbered as 6 (C) arising out of O.S. No. 474 of 2019 Smt. Prema W/o Harish Chandra Yadav Vs Shailendra Dev Dubey, expeditiously, preferable on day to day basis or in alternative within some prescribed time frame without granting any unnecessary adjournment."
3. It appears that an Original Suit No. 474 of 2019 (Smt. Prema Vs. Shailendra Dev Dubey) was filed by the plaintiff-petitioner in the court of Civil Judge (Junior Division) East, Allahabad seeking a relief of injunction. Though, a copy of the plaint has been purportedly filed as Annexure No. 4 to this petition, however, the page containing the relief clause is missing. Therefore, the relief claimed in the suit recorded above is what has been stated by the learned counsel for the petitioner. It appears that in the aforesaid suit on 22.2.2019, an order was passed by the trial court (Annexure No. 6 to this petition) in which after perusing the application 6 Ga, the trial court observed that the land in question cannot be identified at this stage and therefore, no interim injunction can be granted and therefore, notices were issued. It appears that, thereafter, another application Paper No. 13C dated 26.4.2019 was filed by the plaintiff-petitioner seeking ad-interim injunction. By an order dated 26.4.2019, the application was rejected by the trial court after observing that notice had been issued to the defendant on the ground that the property was not identifiable and hence, an ad-interim injunction cannot be granted regarding such property which cannot be identified. Accordingly, the application was dismissed. The petitioner then filed a petition being Matters Under Article 227 No. 3584 of 2019 which was dismissed by an order dated 7.5.2019 while observing that the appropriate remedy for the petitioner is to file a revision before the appropriate Court. It appears that thereafter the petitioner filed a Civil Revision No. 46 of 2019 which has been dismissed by means of the impugned order dated 16.5.2023 while observing that the revision would not be maintainable.
4. The contention of the learned counsel for the petitioner is that the revision was filed in view of the directions given by this Court and therefore, the revisional court ought not to have dismissed the revision on the ground of maintainability. It has further been stated that the revisional court has observed that the property in dispute cannot be identified which is factually incorrect.
5. Shri Agrahari, learned counsel for the respondent has opposed the petition and has stated that the court can always decide the issue with regard to its jurisdiction and also the aspect of maintainability of the case filed before it which has been done in the instant case by the revisional court and therefore, no cause for interference exists.
6. I have perused the record. In its order, the revisional court observed that the revision was admitted in view of the order passed by the High Court, however, the order challenged in revision is interlocutory would not come under the category of final order or a case decided. The revisional court observed that the order rejecting the application 13 Ga for ad-interim injunction was an interlocutory order and the trial court had observed that the property in dispute is not identifiable, therefore, after relying upon judgments, the trial court observed that the revision was not maintainable and by the impugned order, the revision was dismissed. It was further observed that it is expected of the trial court that the application Paper No. 6 Ga would be decided, expeditiously.
7. The order of this Court dated 7.5.2019 passed in the previous petition of 2019 cannot be construed to mean that this Court had conferred jurisdiction on the revisional court while dismissing the petition. It was always open to the revisional court to consider the maintainability of the revision, which has been justifiably and correctly done by the revisional court.
8. Under the circumstances, no interference is merited in this petition and this petition is dismissed.
9. Since, an order for expeditious disposal of the application 6 Ga has already been made by the revisional court in the impugned order, as such no fresh direction is required to be issued by this Court.
Order Date :- 9.8.2023
A. V. Singh
(Jayant Banerji, J.)
