Ram Autar vs Nagar Palika Parishad and Another

R.K. Mahajan, J.—This is a writ petition seeking a writ in the nature of certiorari quashing the order of District Judge, Ghazipur, dated 1141997 as well as directing the District Judge to pass an order for the maintenance of status quo till the disposal of the miscellaneous appeal which was filed before him.

The learned District Judge while passing the order of paper 6 Ga 2, which is impugned in this writ petition, was of the view that it was not proper to grant the interim order during the pendency of the appeal and the case was fixed for hearing on 551997.

The petition has interesting facts. It appears that the petitioner originally had filed Suit No. 18 of 1987 against the Superintendent of Police, Ghazipur in charge of Police Station Razagunj for restraining the defendants from interfering with his possession over plot No. 135/22, situated in Mauza Ghazipur, An application for ad interim injunction was also filed in the suit before the trial court. The trial Court passed an order on 221988 that the status quo on the spot was to be maintained. Against the aforesaid order, defendants filed an appeal. The appeal was allowed on 3181988 by the Additional Civil Judge, Ghazipur and the order dated 221988 was set aside. Against the aforesaid order, the petitioner Ram Autar has come to this Court and filed Civil Misc. Writ Petition No. 17374 of 1988 against Mahadeo Koeri and 5 others through Sri S.K. Verma, Advocate. The said writ petition was admitted on 2091988 by this Court and on the stay application, the following order was passed on the same day:

"Issue notice. Till further orders of this Court, operation of the impugned order dated 3181988 shall remain stayed."

The said writ petition is still pending for disposal. In the said writ petition, the parties are Ram Autar as petitioner while Mahadeo Koeri, Kalp Nath, Deo Nath, the Superintendent of Police, Ghazipur, the SubInspector, Incharge, P.S. Razaganj, Ghazipur City and the Additional Civil Judge, Ghazipur are the respondents.

In the present writ petition (Writ Petition No. 13373 of 1997), it was alleged that firstly, the obstruction was done by the Superintendent of Police, Ghazipur but there again the Nagar Palika, respondent No. 1, tried to interfere with the possession of the petitioner over the same plot i.e. plot No. 135/22, situate in Mauza, Ghazipur. This prompted the petitioner to file another suit against the present respondents 1 and 2 and as such the petitioner again filed 66 of 1997 in the court of Civil Judge (Junior Division), Ghazipur against the Nagar Palika parishad, Ghazipur and Executive Officer, Nagar Palika Parishad, Ghazipur as well as 13 other persons, as defendants. However, the instant writ petition has been filed against the defendants 1 and 2, i.e. Nagar Palaika Parishad and its Executive Officer, only. In the writ petition, the averment was made that the defendants 3 to 15 had got themselves arrayed and they had supported the case of the petitioner. It was also alleged in the petition that the case of the defendants 3 to 15 was that the defendants 1 and 2 can not cut away the Peepal trees standing on the land in dispute.

In the said suit No. 66 of 1997, the plaintiffpetitioner also moved an application for ad interim injunction before the trial Court. The trial court by passing a very detailed order dated 9 41997, rejected the application for ad interim injunction fixing 2851997 for framing of issues. Immediately thereafter, the petitioner preferred a miscellaneous appeal before the District Judge, Ghazipur. In the appeal, an application paper No. 6Ga 2 was also filed for ad interim injunction praying that no damage would be caused on the articles standing over the disputed land. Before the lower appellate Court, it was argued by the learned Counsel for the appellantpetitioner that the land in dispute is the roadside (Patri). The learned lower appellate Court was of the view that under such circumstances, the issuance of ad interim injunction is no feasible ordering the appeal to be put on 551997 for hearing. The order to this effect was passed on 1141997 by the lower appellate Court against which this writ petition has been filed.

I have heard the learned Counsel for the petitioner. On his pointing out that earlier Civil Misc. Writ Petition No. 17374 of 1988 was filed by him in respect of the same subjectmatter, the writ petition was directed to put up along with Writ Petition No. 17374 of 1988. This order was passed on 2241997 ordering the case to be put up tomorrow. That is how both the writ petitions are before me.

I have perused the record of Civil Mics. Writ petition No. 17374of 1988. In the said writ petition, counter and rejoinder affidavits have been exchanged.

Since in both the writ petitions i.e. Civil Misc. Writ Petition Nos. 17374 of 1988 and 13373 of 1997 arising out of Suit No. 18 of 1987 and Suit No. 66 of 1997 respectively, the property in dispute (Plot No. 135/22) is the same though the petitioner plaintiff is one whereas the defendantsrespondents are substantially I would like to dispose of both the writ petitions together to avoid the multiplicity and complications of the litigation. So both the writ petitions are being disposed of by this order. There is also a settled principle of law that the parallel proceeding in High Court as well as in subordinate court on the same subjectmatter does not lie. As mentioned above, the controversy was about the same property and the matter is subjudiced in the suits before the trial Court and there can be better sifting of facts and in the facts and circumstances the interim order has become infructuous as it has merged in the controversy raised in the suit.

Sri S.K. Verma, learned Counsel for the petitioner, has contended that in order to preserve the property in dispute, the learned District Judge was bound to grant the ad interim injunction in the appeal till the decision of the appeal and as such he was submitted that the learned District Judge has committed illegality in refusing the injunction during the pendency of the appeal. In support of his contention, the learned Counsel for the petitioner has relied upon a decision of the Supreme Court in the case of P.K. Shetty v. B.S. Giridhar,(l982)3SCC4Q3, in which it has been held as under:

"Practice and ProcedureSupreme Court will interfere even at an interim stage in the stage in the interest of justicePrayer for interim stay of suit proceedings for eviction till disposal of previously filed application for fixation of fair rent before Rent Controller, refusedDisposal of the application having direct and substantial hearing on the matter in issue in the suitIn the circumstances held, refusal of stay not justified Stay granted by Supreme CourtConstitution of India, Article 133Civil Procedure Code, 1908, Control Act, 1961 (Kant. Act 22 of 1961), Section 14."

However, considering the facts and circumstances of the present case in hand, this ruling has no application as the petitioner is fighting a battle of removal of encroachment. The learned Counsel for the petitioner has also relied upon 1987 All. LJ. 1266The National Textile Corporation Pvt. Ltd. v. Swadeshi Cotton Mills Ltd. and others regarding the grant of injunction. The learned Counsel for the petitioner has also cited a decision of Supreme Court given in Civil Appeal No. 6980, 7017 of 1996 Union of India v. Janki Mahto and others in which it was held as under:

"The only question is whether the High Court was justified in granting the interim directions as prayed for. In view of the circumstances of the case we think that the High Court would have granted interim stay of the execution of the award which is the subjectmatter of appeals in the High Court."

There should be some and of litigation and repeated round of litigation has to be brought at fault. The learned District Judge has fixed 551997 for hearing of the appeal which is a date prior to the date 2851997 fixed by the trial Court for framing the issues in the suit. So in my view, the learned District Judge has not committed any illegality or abuse of process of law or want of jurisdiction in passing the impugned order refusing to grant ad interim injunction fixing the appeal itself for hearing on 551997. It may be mentioned that granting of stay is to give benefit to one party but it may disproportionately cause inconvenience and disadvantage to the society. It may also be pertinent to mention that encroachment over the land in dispute has been made by the petitioner by making construction of stall on public property and it has become difficult for the persons who carries corpse for last ceremony as it appears from the averment made in para 7 of the counter affidavit filed in Writ Petition No. 17374 of 1988.

For the aforesaid reasons, I am of the considered view that the multiplicity of litigation is not good and conducive and in the facts and circumstances of the case, as mentioned above, I do not find force in any of the writ petitions, namely Civil Misc. Writ Petition No. 17374 of 1988Ram Avtar v. Mahadeo Koeri and others and Civil Misc. Writ Petition No. 13373 of 1997Ram Avtar v. Nagar Palika Parishad and another. Therefore, both the writ petitions are dismissed. The stay order dated 2091988 granted in Civil Misc. Writ Petition No. 17374 of 1988 by this Court is vacated.

This order will also dispose Civil Misc. Writ Petition No. 17374 of 1988 as it arises out on the same facts and common question of law is involved. It may be mentioned that this case is being taken up for last three days along with connected writ petition. On the last date, i.e. 2351997 none of the Counsel is present to contest the case effectively. Petition dismissed.