Indus Co. and Another vs The Civil Judge (J.D.) and Judicial Magistrate No. 1 and Others

Mahesh Bhagwati, V.J.

Heard the learned Counsel for the petitioners and carefully perused the relevant material available on record.

Skipping unnecessary details, the facts in nub of the writ petition are that the respondents No. 2 and 3 filed a suit for mandatory injunction against the petitioners praying that the petitioners be restrained from erecting mobile tower over the house of respondent No. 4 and 5. The learned trial Court passed an interim order directing the parties to maintain status quo. During the pendency of the proceedings, the petitioners averred that they had already erected a tower which was standing loose and thus, they should be permitted to tighten the screws so that the tower might not fall. The Court allowed the petitioners to tighten the screws but under the garb of it, they started raising construction and erected mobile tower on the same day, which was taken note of by the Court and after affording opportunity of hearing to both the parties, the Court on an application u/s 151 of CPC filed by the respondents No. 2 and 3, directed to remove the mobile tower from the disputed house of respondent No. 2 and 3. The petitioners filed a review petition which was also dismissed accordingly. Aggrieved with the order of the lower Court, respondents No. 4 and 5 filed an appeal in the Appellate Court which is pending for hearing.

From the perusal of the contents of the writ petition as also the relevant documents available on record, it emerges that efficacious remedy has already been sought for by the respondents No. 4 and 5 by way of filing an appeal against the impugned order. The order dated 1.6.2009 rendered by the Civil Judge (J.D.), Alwar further reveals that sale Amin of the Court had been directed to comply with the orders dated 28.2.2009 and 29.5.2009 rendered by that Court. This order was passed on 1.6.2009 and I am sanguine that the compliance of these said orders by now must have been made by the competent officers. The efficacious remedy available to the petitioners has already been availed by them. The appeal against the order dated 29.5.2009 is still said to be pending in the Appellate Court. The petitioners cannot be permitted to pursue two parallel proceedings at one time. The petitioners can also not be permitted to invoke extra-ordinary jurisdiction under Article 226 and 227 of the Constitution of India in an ordinary matter. The writ petition can also not be allowed to convert into a suit. The writ petition is found to be devoid of force and bereft of merit, which deserves to be dismissed at the threshold.

In the result, the writ petition filed by the petitioners under Article 226 and 227 of the Constitution of India stands dismissed in limine.