Kunjal vs Madan Prakash Gupta And Another
2023 Latest Caselaw 22795 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:168491
 
Court No. - 1
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 6623 of 2023
 

 
Petitioner :- Kunjal
 
Respondent :- Madan Prakash Gupta And Another
 
Counsel for Petitioner :- Suresh Singh,Ritesh Singh
 
Counsel for Respondent :- Sanjay Tiwari,Devi Prasad Tripathi
 

 
Hon'ble Jayant Banerji,J.

1. Heard learned counsel for the petitioner and Shri D.B. Tripathi, learned counsel for the respondent.

2. This petition has been filed seeking the following relief:

"a. Set-aside the judgment and order dated 12.04.2023 passed by the Additional District & Session Judge, Court NO.4 Gorakhpur in pending Civil Appeal NO. 96 of 2022 (Kunal Vs. Madan and Another) arising out the order dated 24.11.2022 passed by Additional Civil Judge Junior Division, Court No. 1, Gorakhpur in suit NO. 1187 of 1990 Kunal Vs. Awadhu and Another)."

3. The contention of the learned counsel for the petitioner is that in the written statement filed by the defendant-respondent no. 1, an admission has been made regarding the possession of the property in dispute by the plaintiff-petitioner and therefore, given the relief of injunction claimed in the plaint for not disturbing the possession of the plaintiff, the suit was wrongly dismissed. It is pointed out that an application for stay of proceedings filed in Civil Appeal No. 96 of 2022 has been rejected by the impugned order dated 12.4.2023.

4. Learned counsel for the respondent has opposed the aforesaid petition by stating that the petitioner has challenged the final judgment and order dated 24.11.2022 which is not maintainable in proceedings under Article 227 of the Constitution of India.

5. The aforesaid petition has been filed challenging the judgment and order dated 24.11.2022 passed by the trial court in Original Suit No. 1187 of 1990 and as such is not maintainable. Admittedly, a civil appeal has been filed challenging the decree made in the aforesaid judgment. The other order under challenged dated 12.4.2023 passed by the appellate court rejecting the application for temporary injunction also cannot be interfered with. It is not argued by the learned counsel for the petitioner that an application was filed by the petitioner under Order XII Rule 6 of the CPC for passing a judgment on the admission made. It is also not the contention of the learned counsel for the petitioner that any issue with regard to the possession of the plaintiff over the property in dispute was framed in the suit.

6. Under the circumstances, no interference is called for and this petition is, therefore, dismissed.

Order Date :- 22.8.2023

A. V. Singh

(Jayant Banerji, J.)