Rasid vs District Judge,Mirzapur and Others

D.K. Seth, J.—By means of this application, the order dated 19296 is sought to be recalled and reviewed on the ground that the same was decided ex pane without hearing the learned Counsel for the petitioner and that the equity part of the facts involved in the case was loss sight of and that the ratio decided in the case of Ganga Saran v. District Judge, Hapur, AIR 1991 (All) 114, relied upon in the said case had no manner of application and that because of the judgment substantial injustice has been ensued and that the writ petition was dismissed on the ground of its nonmaintainability, though a writ petition is maintainable against an order passed on an application for adinterim injunction.

Learned Counsel for the petitioner Shri K.S. Tiwari had addressed the Court on the merit of the case in order to substantiate his contention that in the present case fundamental principle of law has been violated and that substantial injustice has been caused due to the order impugned in the present writ petition. He had dealt with the question of fact and referred to various documents in order to substantiate his contention.

Mr. Trwari had contended that against an order passed in a civil suit by a civil court a writ petition is maintainable in view of the Full Bench decision of this Court in the case of Ganga Saran (supra) wherein the question referred to the Full Bench being question No. 2 as to the maintainability of the writ petition against an order passed in exercise of revisional jurisdiction by the District Judge in the affirmative. He had relied on the observation made in paragraphs 11 and 12 of the said Full Bench decision. According to him if there is substantial injustice and there is violation of fundamental principle of law, the writ jurisdiction attracted.

He further contends that the question of issuance of mandamus against a party does not arise in the present case since in the writ petition only a prayer for issuance of certiorari has been made. 1

The aforesaid submission of Mr. Tiwari appears to be devoid of merit for the simple reason as has been observed in the case of Ganga Saran (supra) to the extent that where an aggrieved party approaches High Court under Article 226 of the Constitution against an order passed in civil suit refusing to issue injunction to a private individual who is not under statutory duty to perform public duty or vacating an order of injunction, the main relief that is claimed is for issue of a writ of mandamus to a private individual and such a writ petition under Article 226 of the Constitution would not be maintainable. Though the prayer may be cast or dressed up in the form of certiorari, but the ultimate net result would be grant or refusal of an ad interim injunction which has the effect of a prohibitory or mandatory order having an effect of something positive being in the nature of an order issued in the process of pending writ of mandamus. On this analogy it was held in the said case that in a suit for injunction, the writ would not be maintainable.

Despite vehement Argument by Mr. Tiwari, he has not been able to point out any violation of fundamental principle of law from the order impugned. The order appears to be a decision on the basis of the materials placed before the Court below with regard to the finding of fact in an interlocutory order passed in civil suit between two private individuals. Admittedly, both of whom are under no obligation to perform public duty or statutory duty. The finding of fact in an interlocutory application is a question of belief and disbelief of the case of one or the other to the extent of making out a prima facie case. Arriving at such conclusion by the Court below on the basis of materials on record does not seem to be travel to realm of violation of fundamental principle of law while accepting the case of one rejecting that of the other for the purpose of dinging out a prima facie case. Nothing has been shown to this Court that the said finding is perverse or as to what fundamental principle of law has been violated in the said order.

For the reasons aforementioned, I am not able to agree with the contention of Mr. Tiwari. The application for recalling/reviewing the order dated 19296 cannot be maintained particularly in view of the fact that after having heard learned Counsel for the petitioner, I have not found anything so as to form an opinion that there has been any mistake or error apparent on the face of the order sought to be recalled or reviewed.

The review application is, therefore, dismissed. There will be no order as to costs.

Review dismissed.