Allahabad High Court
Sandeep Anand vs Bharat Jaiswal And 4 Others on 16 May, 2023
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:106432
Court No. - 5
Case :- MATTERS UNDER ARTICLE 227 No. - 5326 of 2023
Petitioner :- Sandeep Anand
Respondent :- Bharat Jaiswal And 4 Others
Counsel for Petitioner :- Sanjay Kumar Srivastava,Namit Srivastava
Hon'ble Prakash Padia,J.
1. Heard Sri Namit Srivastava, learned counsel for the petitioner.
2. The petitioner has preferred the present petition with the following prayers:-
"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the present writ petition and to:
(a) Issue a writ, order or direction directing the respondent no.1 to decide the Original Suit No. 493 of 2002 Tej Narain Anand and 3 others versus Bharat Jaiswal and 3 others expeditiously and if possible then within a stipulated time.
(b) Any other writ, order of direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(c) Award costs of the writ petition throughout, to the petitioner."
3. From perusal of the prayer, it reveals that the relief sought in the petition is in the nature of "WRIT", this Court is of the opinion that no writ can be granted under Article 227 of the Constitution of India.
4. Apart from the same, in paragraph one of the petition, word "Writ Petition" is mentioned and similarly, in paragraph No.3 and various other places of the petition, word "Writ Petition" is mentioned.
5. Since this Court have no jurisdiction to issue any writ, the present petition is liable to be dismissed only on this ground alone.
6. Insofar as the merits of the case is concerned, a prayer has been made by the plaintiff-petitioner to direct the Court below to decide the Original Suit No.493 of 2002 expeditiously.
7. The facts as narrated in the petition are that the Original Suit No.493 of 2002 was filed in the year 2002 by the plaintiff-petitioner and the same was decreed in his favour in an ex-parte manner on 21.04.2010. Thereafter execution Case No.7 of 2010 was filed by the plaintiff-petitioner. Since the aforesaid case was not decided, the petitioner filed a petition being Matter Under Article 227 No.1628 of 2020 (Sandeep Vs. Bharat Jaiswal and others) which was decided by a Co-ordinate Bench of this Court vide its judgement and order dated 27.02.2020 with a direction to the Court below to decide the aforesaid execution case expeditiously and preferably within a period of six months. It is further stated that against an ex-parte decree passed in favour of the plaintiff-petitioner, an application under Order 9 Rule 13 C.P.C. was filed by the defendant-respondent Nos.2 to 4 before the Court below which was numbered as Misc. Case No.77 of 2010. The aforesaid Misc. Case was allowed by the Trial Court vide its judgement and order dated 01.04.2023. The operative portion of the aforesaid judgment and order is reporduced hereinbelow
????
?????????? ?? ????????? ???? 3? ? 4? ?? 1500 ????? ????? ?? ??????? ???? ???? ?? ? ?????? ??? ????? ???????? ?????? ?????? 21.04.10 ? ???? ?????? 15.05.2010 ?????? ?? ???? ?? | ?????? ?????? 493 02 ???? ??? ????? ?? ???? ?? ? ???????? ????? ???? ???? ?? ??????? ??? | ?????? ?????? ?????? ????????? ?????? 08.05.2023 ?? ??? ?? ?
8. It is argued by learned counsel for the petitioner that after restoring the suit, the contesting respondent one after the other seeks adjournment in the matter and the above mentioned conduct of the respondent Nos.2 to 4 amounts to abuse of process of law. It is stated in paragraph 12 of the petition that the due to pendency of the aforesaid case, the petitioner is suffering from irreparable loss. The paragraph Nos.11 & 12 are reproduced hereinbelow:-
"11. That the counsel of the contesting respondent one after the other seeks adjournment in the matter and the above mentioned conduct of the respondent nos. 2 to 4 amounts to abuse of the process of law because respondent nos. 2 to 4 sit tight over the matter.
12. That the pendency of the Original Suit No. 493 of 2002 Tej Narain Anand and 3 others versus Bharat Jaiswal and 3 others is causing irreparable loss to petitioner."
9. Heard learned counsel for the petitioner and perused the record.
10 From perusal of the record, it transpires that suit which was decreed in an ex-parte manner in favour of the petitioner was recalled by the Trial Court vide its judgement and order dated 01.04.2023. Nothing has been brought on record in the entire petition that what happened after 01.04.2023 and without giving any cogent explanation, the present petition has been filed stating therein that the respondents are trying to linger on the proceedings.Further the present petition has been filed without giving even breathing time to the Court below to proceed with the matter and the petitioner rushed this Court for a direction.
11. In view of the above and after going through the record, this Court is of the opinin that the present petition lacks merit and the same is liable to be dismissed.
12. Accordingly the present petition is dismissed.
13. After the aforesaid order was passed, a prayer has been made by the counsel for the petitioner to dismiss the present petition as withdrawn with liberty to file fresh petition.
14. The aforesaid prayer is also rejected.
15. Registrar (Compliance) is directed to send a copy of this order to the District Judge Prayagraj and the District Judge, Prayagraj is directed to keep a copy of this order in the record of Original Suit No.493 of 2002 (Tej Narain Anand and 3 others versus Bharat Jaiswal and 3 others) within a week.
Order Date :- 16.5.2023
saqlain
