Abhay Singh vs 2Nd Additional District Judge, Jaunpur and Others

S.P. Mehrotra, J.—Case has been takenup in the revised list. Learned counsel for the petitioner is not present. Shri Dinesh Pathak, learned counsel for the respondents Nos.3, 4, 8, 9 and 10, is present.

It appears that Abhay Singh (petitioner) and Rama Shanker, as plaintiffs filed Suit for permanent injunction against the respondents Nos.3 to 10 herein (as defendants in the said Suit). The said Suit was registered as Original Suit No.1577 of 1999.

It further appears that an application for grant of temporary injunction was filed on behalf of the plaintiffs in the said Suit.

By the order dated 22.8.2000 (Annexure2 to the writ petition) passed by the learned Civil Judge, City Jaunpur, the said Application for temporary injunction was rejected. Thereupon, an appeal was filed against the said order dated 22.8.2000. The said Appeal was registered as Misc. Civil Appeal No.137 of 2000.

By the order dated 4.4.2001 (Annexure7 to the writ petition), the said Misc. Civil Appeal No.137 of 2000 was dismissed.

Thereafter, the petitioner has filed the present writ petition, inter alia, praying for quashing the said order dated 4.4.2001.

It further appears that by the order dated 8.6.2001, passed in the present writ petition, the parties were directed to maintain status quo in respect to the nature and possession of the disputed property till the next date of listing.

It further appears that Civil Misc. (Record) Application No.35776 of 2006 alongwith a Supplementary Counter Affidavit, sworn on 5.2.2006, was filed on behalf of the respondents Nos.3, 4, 8, 9 and 10.

As is evident from the endorsement made on the aforementioned Application, copy of the aforementioned Application alongwith the said Supplementary Counter Affidavit was served on the learned counsel for the petitioner on 14.2.2006.

In paragraph 3 of the said Supplementary Counter Affidavit, it is averred as under:

�3. That it is submitted that Original Suit No.1577 of 1999 pending in the Court of Civil Judge (Junior Division) being (Abhay v. Sahab Lal) has been dismissed in default vide order dated 5.4.2004 and no Restoration has yet been filed in the Court concerned or any appeal. A true copy of the order dated 5.4.2004 is being filed herewith and marked as Annexure No.1 to this Supplementary Affidavit.�

It is evident from a perusal of the abovequoted paragraph 3 of the Supplementary Counter Affidavit that the said Original Suit No.1577 of 1999 was dismissed in default by the order dated 5.4.2004. It is further evident from the above quotedparagraph 3 of the Supplementary Counter Affidavit that till the date of swearing of the said Supplementary Counter Affidavit, no restoration Application or Appeal had been filed in respect of the said order dated 5.4.2004 dismissing the said Original Suit No.1577 of 1999 in default.

Photostat copy of certified copy of the said order dated 5.4.2004 has been filed as Annexure1 to the said Supplementary Counter Affidavit. During the course of arguments today, Shri Dinesh Pathak, learned counsel for the respondents Nos.3, 4, 8, 9 and 10 has produced a certified copy of the said order dated 5.4.2004. Let the said certified copy be placed on record.

In view of the above, it is evident that the present writ petition has been filed impugning the order dated 4.4.2001 passed in Misc. Civil Appeal No.137 of 2000 filed against the order dated 22.8.2000 whereby the learned Civil Judge, City, Jaunpur rejected the Application for temporary injunction filed on behalf of the plaintiffs in the said Original Suit No.1577 of 1999.

As the said Original Suit No.1577 of 1999 has already been dismissed in default on 5.4.2004, the present writ petition pertaining to the Application for grant of temporary injunction during the pendency of the said Suit, has evidently become infructuous.

In the circumstances, the writ petition is dismissed as having become infructuous.

However, on the facts and circumstances of the case, there will be no order as to costs.

(Petition dismissed)