# Nitya Nand Pandey v. A.C.J.M. V/Civil Judge Gorakhpur and others - **Citation:** (2000) 3 ILRA 311 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2000 - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nitya-nand-pandey-v-a-c-j-m-v-civil-judge-gorakhpur-and-others-39522 - **Pages:** 4 ## Text 311 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 the debtor to meet his obligation through the post is implied." 9. So far the decision of the Division Bench in Ram Autar (supra) is concerned it was no doubt held therein that the application sent by registered post if received after expiry of the last date would be liable to be rejected. But the relevant portion of the advertisement as quoted by Division Bench in its judgment do not expressly or by necessary implication establish an agreement inviting applications through post office and as such the Division Bench decision on facts is not applicable. 10. In the result the petition succeeds and is allowed. The respondentU.P. Higher Education Services Commission is directed to entertain the application if the same is presented personally before the Secretary within 10 days from today who shall acknowledge the receipt of the application. 25,*,1$/ -85,6',&7,21 25,*,1$/ -85,6',&7,21 &,9,/ 6,'( &,9,/ 6,'( '$7(' $//$+$%$' 6(37 '$7(' $//$+$%$' 6(37 %()25( %()25( 7+( +21 % 7+( +21 %/( 6+<$0$/ .80$5 6(1 &- /( 6+<$0$/ .80$5 6(1 &- 7+( +21 %/( *30$7+85 - 7+( +21 %/( *30$7+85 - &LYLO 0LVF :ULW 3HWLWLRQ 1R RI 1LW\D 1DQG 3DQGH\ «3HWLWLRQHU 9HUVXV $GGLWLRQDO &KLHI -XGLFLDO 0DJLVWUDWH 9 &LYLO -XGJH 6HQLRU 'LYLVLRQ *RUDNKSXU DQG RWKHUV «5HVSRQGHQWV &RXQVHO IRU WKH 3HWLWLRQHU 6KUL $3 7HZDUL 6KUL 667ULSDWKL &RXQVHO IRU WKH 5HVSRQGHQWV 6& &RQVWLWXWLRQ RI ,QGLD $UWLFOH ([WUD RUGLQDU\ MXULVGLFWLRQ([HUFLVH RI IRU RUGHULQJ TXLFN GLVSRVDO RI FLYLO VXLW SHQGLQJ IRU ORQJ WLPH +HOG 3RZHU XQGHU $UWLFOH FDQQRW EH H[HUFLVHG +HOG3DUD :H DUH DIUDLG WKDW ZH DUH XQDEOH WR JUDQW DQ\ UHOLHI LQ WKH LQVWDQW FDVH VLQFH LQ RXU YLHZ LW ZLOO QRW EH SURSHU WR H[HUFLVH VXFK SRZHU LQ ZULW MXULVGLFWLRQ XQGHU $UWLFOH RI WKH &RQVWLWXWLRQ RI ,QGLD LQ UHVSHFW RI D FLYLO VXLW SHQGLQJ EHIRUH WKH GLVWULFW FRXUW 7KH &LYLO 3URFHGXUH &RGH LWVHOI SURYLGHV UHPHG\ LQ VXFK FLUFXPVWDQFHV ,Q WKLV FRQQHFWLRQ 6HFWLRQ RI WKH &RGH RI &LYLO 3URFHGXUH PD\ EH WDNHQ QRWH RI &DVH /DZ GLVFXVVHG $&- $,5 $OO $:& By the Court 1. In the instant writ petition the petitioner has prayed for issuance of a writ of mandamus commanding the Additional Chief Judicial Magistrate V/ Civil Judge (Senior Division), Gorakhpur to adjudicate and decide Original Suit No. 1990 of 1988, Nitya Nand Pande Vs. Sharda Prasad Pande and others within a specified time. 2. The facts alleged by the writ petitioner is that the petitioner filed a suit for permanent injunction restraining the respondents from cutting down the trees standing over the suit land as well as from raising any construction over the same. A relief for mandatory injunction for removal of boundary wall and door raised over the suit land has also been claimed. The aforesaid suit filed on 9.8.1988 was 3All] Nitya Nand Pandey V. A.C.J.M. V/Civil Judge Gorakhpur and others 312 registered as O.S. No. 1990 of 1988, Nitya Nand Pandey .V. Sharda Prasad Pandey and others in the court of Munsif, Gorakhpur, now pending in the Court of Additional Chief Judicial Magistrate V / Civil Judge (Senior Division), Gorakhpur. 3. In the said suit written statement was filed and necessary issues were settled. The parties also led their evidence in support of their respective claims. It has been alleged by the writ petitioner that the defendants, who are respondents no. 2 to 5 in the instant writ petition, are adopting dilatory tactics by taking adjournments and are trying to prolong the litigation by filing one application or the other very often. The suit was fixed for final hearing on 8.12.1999. In the mean time on 30.11.1999 the respondents made an application for making formal order and on 8.12.1999 the respondents sought for adjournment, which was allowed by the trial court subject to payment of Rs. 20/- as costs, fixing 23.12.1999. Thereafter several dates were fixed by the trial court but the respondents did not allow the trial court to proceed with the suit and on one pretext or the other god adjournments. In the circumstances the writ petitioner has prayed that a writ of mandamus be issued directing the District Judge to expeditiously dispose of the trial. 4. We are afraid that we are unable to grant any relief in the instant case, since in our view, it will not be proper to exercise such power in writ jurisdiction under Article 226 of the Constitution of India in respect of a civil suit pending before the district court. The Civil Procedure Code itself provides remedy in such circumstances In this connection Section 24 of the Code of Civil Procedure may be taken note of. "24. General power of transfer and withdrawal.-(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the district Court may at any stage- (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it, and competent to try or dispose of the same, or (b) Withdraw any suit, appeal or other proceeding pending an any Court subordinate to it and. (i) Try or dispose of the same; or (ii) Transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (iii) Retransfer the same for trial or disposal to the Court from which it was withdrawn. (2)..................." If the petitioner is really aggrieved, he should have applied under the provisions of Section 24 of the Code of Civil Procedure. It is also open to the petitioner to place an application before the District Judge for transfer of the suit. It may also be noted that the Allahabad High Court Rules also provides relief in appropriate circumstances for transfer of a proceeding. 313 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 5. Under Chapter VII Rule 4 of the Allahabad High Court Rules the High Court has power under extraordinary original civil jurisdiction to remove any suit being or falling within the jurisdiction of any Court subject to its superintendence when it shall think proper to do so either on the agreement of the parties to that effect or for the purposes of justice. The said Chapter is set out as follows : 'Extraordinary original civil jurisdiction of the Court - The Court may remove and try and determine as a Court of extraordinary original jurisdiction any suit being or falling within the jurisdiction of any Court subject to its superintendence when it shall think proper to do so either on the agreement of the parties to that effect or for the purposes of justice, the reasons for so doing being recorded on the proceedings of the Court.' 6. In this connection we may observe that the decision of the Division Bench of this Court in the case of Sidhartha Kumar and others versus. Upper Civil Judge, Senior Division, Ghazipur and others reported in A.C.J. 1998 Page 154 has not considered the aforesaid provisions of the Code of Civil Procedure or of the Rules of our High Court probably because the learned counsel has not referred the said provisions to the learned Judges. When the Code of Civil Procedure and Rules provide for the remedy, there is no reason for interference in the writ petition. The said decision of the aforesaid Division Bench in our view appears to be per incurium. 7. In this connection we may also take note of the Full Bench decision of this Court in the case of Ganga Saran .V. Civil Judge, Hapur, Ghaziabad and others (A.I.R. 1991 Allahabad 114. In the aforesaid decision it was held interalia: "....Where an aggrieved party approaches High Court under Article 226 of the3 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 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 maintainable..." 8. All aspects have not been considered by the Division Bench of this Court in the case of Sidhartha Kumar (supra). Being perturbed with the delay in rendering justice to the litigants the Division Bench in the aforesaid decision laid stress on speedy justice and held that unnecessary adjournment should not be granted. The said Division Bench also did not consider any of the decisions of the Supreme Court referred to in the Full Bench case of Gang Saran (supra). In the case of Qamaruddin Vs. Rasul Baksh reported in 1990 All. W.C. 308, it has been clearly laid down that ordinarily an interlocutory order passed in a civil suit is not amenable to extraordinary jurisdiction of the High Court under Article 226 of the Constitution. 9. In our view, the Division Bench judgment in the case of Sidhartha Kumar and others (supra) is per incurium since all the aforesaid decisions and the points considered therein have not been considered, probably because the learned counsel did not refer the same. It is unfortunate that the suit of 1980 is kept pending. There is nothing. However, on 3All] Avinash Kumar Yadav V. The Executive Director, I.T.I. Ltd.,Allahabad & another 314 record to show that the appropriate remedy against the adjournment orders passed by the trial court was pursued by the plaintiff. Considering all the aspect of the matter, we are inclined to dismiss the writ petition. 10. We, however, observe that in the event an application is moved for early disposal of the suit before the appropriate forum, appropriate steps should be taken by the court below and the suit should be disposed of as early as possible without further loss of time. 11. The writ petition stands dismissed, with the observations noted above. 25,*,1$/ -85,6',&7,21 25,*,1$/ -85,6',&7,21 &,9,/ 6,'( &,9,/ 6,'( '$7(' $//$+$%$' 6(37 '$7(' $//$+$%$' 6(37 %()25( %()25( 7+( +21·%/( 65 6,1*+ - 7+( +21·%/( 65 6,1*+ - &LYLO 0LVF :ULW 3HWLWLRQ 1R RI $YLQDVK .XPDU