Amravati vs Addl. District . Judge/F.T.C. ...
2023 Latest Caselaw 1747 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 19
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 187 of 2023
 
Petitioner :- Amravati
 
Respondent :- Addl. District . Judge/F.T.C. Faizabad And 10 Others
 
Counsel for Petitioner :- Raghaw Ram Upadhyay,Pradeep Kumar Singh Vats
 

 
Hon'ble Manish Mathur,J.

Heard learned counsel for petitioner.

In view of order being proposed to be passed, notices to opposite parties stand dispensed with.

Petition under Article 227 of the Constitution of India has been filed assailing the order dated 16.02.2022 whereby application filed by the petitioner-defendant under Order 41, Rule 27 of the Code of Civil Procedure has been rejected.

Learned counsel for petitioner submits that with regard to property in question, the original plaintiff Ram Dayal Tiwari filed a suit for specific performance to enforce the agreement of sale dated 25.11.1985. The suit was registered as Original Suit No.248 of 1997 and was decreed by means of judgment and decree order dated 3.3.2014 where against first appeal was preferred by the predecessor-in-interest of the petitioner-defendant which was registered as Appeal No.74 of 2014, during pendency of which the petitioner filed aforesaid application under Order 41 Rule 27 of the Code with specific averment that the evidence sought to be brought on record could not be obtained earlier. The said application has been rejected by means of impugned order.

Learned counsel for petitioner submits that after passing of the impugned order dated 16.02.2022, the first appeal itself was decided by means of judgment and order dated 05.09.2022 against which second appeal (defective) no.10 of 2023 has been filed. It is submitted that despite the judgment in first appeal, it is necessary to challenge the impugned order dated 16.02.2022 by means of the present petition because if the aforesaid order is not challenged separately, it will have a deleterious effect on the proper appreciation of the second appeal. It is submitted that it will also hamper substantial questions of law which could be required to be framed in second appeal.

Upon consideration of submissions advanced by learned counsel for petitioner, it is evident that after passing of the impugned order dated 16.02.2022 rejecting application under Order 41, Rule 27 of the Code, the first appeal itself has been decided by means of judgment and order dated 05.09.2022, against which second appeal has also been preferred before this Court.

In the considered opinion of this Court, once second appeal had already been filed against the appellate judgment and order, there was no occasion for the petitioner to have separately challenged the order dated 16.02.2022 by means of the present petition under Article 227 of the Constitution of India particularly when the first appeal itself stood decided by means of judgment and order dated 05.09.2022.

In view of aforesaid, the petition being devoid of merit is dismissed at the admission stage.

Order Date :- 17.1.2023

Subodh/-