Anil Kumar Jain vs Smt. Kamla Devi and Another

Sibghat Ullah Khan, J.—Petitioner is plaintiff in O.S. No. 610 of 2000. Anil Kumar Jain v.. Smt. Kamla Devi and another, pending before Civil Judge (S.D.), Etah, trial court/Civil Judge (S.D.), Etah rejected temporary injunction application on 6.11.2000. Against the said order plaintiff petitioner filed Misc. Civil Appeal No. 101 of 2000 on the next day in which on 7.11.2000, learned District Judge passed temporary injunction order in his favour directing parties to maintain status quo. Misc. Civil Appeal No. 101 of 2000 has been dismissed on 31.10.2012 by A.D.J./Special Judge. E.C. Act. Etah. The said order has been challenged through this writ petition. Learned A.D.J, has rejected the appeal on the ground that wall had been constructed. I do not find any substantial error in the impugned order. If wall has been constructed during pendency of the suit whether after knowledge or in the absence of knowledge of temporary injunction order, plaintiff will have to seek the relief of its demolition.

Accordingly, writ petition is disposed of with the direction to the trial court to decide the suit very expeditiously. If the plaintiff files an application within three weeks from today alongwith certified copy of this order for amendment of the plaint seeking removal of construction made during pendency of the suit then the same is obviously to be allowed. It is directed that the trial court shall not grant any unnecessary adjournment to the defendants respondents, if any unnecessary adjournment is granted. it shall be on heavy cost, which shall not be less than Rs. 500 per adjournment payable before the next date provided that the certified copy of this order is filed before the trial court within three weeks and plaintiff petitioner does not seek more than one adjournment in any form, except by filing amendment application as indicated above. Learned counsel for the petitioner states that during last 12 years no progress in the suit could be made as file of the suit had been summoned in the misc. appeal filed by the plaintiff. This is horrible state of affairs. In misc. civil appeals or civil revisions u/s 115, C.P.C. there is absolutely no occasion for summoning the record of the trial court which unnecessarily delays the proceedings of the suit even though no stay order is passed in misc. appeal/revision directing stay of proceedings of the suits. In normal course, in misc. appeals against orders passed on temporary injunction applications proceedings of the suits are not stayed. However, due to summoning of the file of the trial court practically no progress can be made in the suit. Accordingly, it is directed that in no misc. civil appeal or civil revision u/s 115, C.P.C. file of the trial court shall be summoned. The party filing the misc. appeal or revision shall file all such documents, which are available on the file of the trial court and on which he wants to place reliance through affidavit. Similarly, respondent may also file copies of all such documents which are available on the file of the trial court and on which they want to place reliance through affidavit.

Office is directed to circulate copy of this order to all the District Judges of U.P. for further circulation to all the A.D.Js. subject to approval of Hon''ble the Chief Justice/Administrative Committee.