Dr. Ashwini Jaiswal vs Union Of India
2024 Latest Caselaw 6723 MP

Madhya Pradesh High Court

Dr. Ashwini Jaiswal vs Union Of India on 5 March, 2024

Author: Subodh Abhyankar

Bench: Subodh Abhyankar

                                                           1
                          IN    THE       HIGH COURT OF MADHYA PRADESH
                                                AT INDORE
                                                      BEFORE
                                      HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
                                               ON THE 5 th OF MARCH, 2024
                                            WRIT PETITION No. 5633 of 2024

                         BETWEEN:-
                         1.    DR. ASHWINI JAISWAL S/O SHRI RAM JAISWAL,
                               AGED ABOUT 61 YEARS, OCCUPATION: DOCTOR
                               R/O PRASHANTI HOSPITAL MHOW DISTT.INDORE
                               (MADHYA PRADESH)

                         2.    PRAKASH CHANDRA S/O KESHRIMAL SHAH 59,
                               MAIN STREET MHOW DISTRICT INDORE
                               (MADHYA PRADESH)

                                                                                       .....PETITIONERS
                         (BY SHRI RISHI TIWARI, ADVOCATE )

                         AND
                         1.    UNION OF INDIA SECRETARY MINISTRY OF
                               DEFENSE NEW DELHI (DELHI)

                         2.    DEFENCE ESTATE OFFICER CIRCLE JABALPUR
                               THROUGH DEFENCE ESTATE OFFICER MHOW
                               DIST. INDORE (MADHYA PRADESH)

                         3.    STATE  OF   M.P. THROUGH   COLLECTOR
                               COLLECTOR OFFICE, INDORE DIST. INDORE
                               (MADHYA PRADESH)

                                                                                      .....RESPONDENTS
                         (BY SHRI HIMANSHU JOSHI, ADVOCATE FOR THE RESPONDENTS NO.1
                         &2
                         MS. GEETANJALI CHOURASIA, PANEL LAWYER FOR THE RESPONDENT
                         NO.3 )

                               This petition coming on for admission this day, the court passed the
                         following:
                                                            ORDER

1] This petition has been filed by the petitioners under Article 226 of the

Constitution of India, seeking the following reliefs:

"a) An appropriate writ, order or direction may kindly be issued and respondents may kindly be restrained from forcibly dispossessing petitioner No.01 without following the procedure prescribed under the Public Premises (Eviction of Unauthorized occupants) Act, 1971 and without affording the opportunity to avail remedy of appeal against the Judgment passed by the trial Court.

b)Any other relief which this Hon'ble Court deems fit may kindly be granted."

2] The grievance of the petitioners is that they have already filed a civil suit bearing RCSA No. 2/2003 in the court of learned Civil Judge, Mhow,

Indore where the judgment is to be delivered tomorrow.

3] Counsel for the petitioners has submitted that in an identical suit, which was filed by the adjacent plot owner of the petitioners, even before the plaintiffs could file the appeal the respondent/Defence Estate Officer had proceeded to dispossess the said plaintiffs on the other day only. Thus, it is submitted that the petitioners are again apprehending that if any adverse order is passed against them, they would not be allowed to take recourse of the remedy is available to them under law to prefer an appeal and prior to that they may be dispossess from the property.

4] Counsel for the respondents/Union of India, has opposed the prayer and it is submitted that the petitioners have remedy under sub-rule (2) of Rule 5 of Order 41 of CPC in which, the trial court itself has the power to stay the judgement till the appeal is filed.

5] On due consideration of the rival submissions, this Court is of the considered opinion that the present petition is premature, as the petitioners have

the remedy available to them under sub-rule (2) of Rule 5 of Order 41 of CPC, which clearly provides that the learned Judge of the Civil Court, who has passed the decree may on sufficient cause being shown, order the execution to be stayed, and this Court has no reason to believe that the aforesaid application would not be decided in accordance with law, by the trial court itself, if filed.

6] In view of the same, the petition is hereby disposed of with a liberty reserved to the petitioners to file the appropriate application, if any adverse decree is passed against them.

Certified copy, as per rules.

(SUBODH ABHYANKAR) JUDGE moni