Shaqoor Khan vs Mohammed Ibrahim and Others

Alok Sharma, J.—This petition has been filed challenging the order dt. 10.08.2009 passed by the learned Addl. District and Session Judge (Fast Track), No. 3, Jaipur City, Jaipur dismissing the petitioner''s miscellaneous appeal against the order dt. 10.02.2009 passed by the Additional Civil Judge (Jr. Division) Jaipur City (East), Jaipur in turn dismissing the application under Sec. 151 of CPC filed by the petitioner-plaintiff (hereinafter plaintiff) for recalling the order dt. 03rd December, 2003 whereby the suit laid by the petitioner was dismissed for non-prosecution on the say of the counsel for the plaintiff. Mr. Mahesh Gupta counsel for the respondents submits that in respect of the very property in issue, a suit was laid by one Mohd. Ibrahim respondent no. 1 herein before the Additional District Judge, No. 2, Jaipur against the plaintiff herein Shaqoor Khan and others for partition and permanent injunction. The said suit was decreed in favour of Mohd. Ibrahim by the trial Court on 31.05.2003 and appeal there against is pending before this Court numbered as RFA No. 472/2003. It is submitted that Mohd. Ibrahim''s suit for partition and injunction inter alia against the plaintiff herein having been decreed there was absolutely nothing to argue in the suit for injunction simplicitor filed by the plaintiff Shaqoor Khan therein. He submits that in such circumstances the counsel for the plaintiff made a statement with regard to not pressing the said suit. It is submitted that the rights of the parties will be determined in the RFA No. 472/2003 pending before this Court against the judgment and decree dt. 31.05.2003 passed by the Addl. District Judge, No. 2, Jaipur City.

Counsel for the plaintiff could not controvert the aforesaid factual situation and the consequences thereto. He submits that the plaintiff would indeed pursue his regular first appeal aforesaid before this Court. Counsel however apprehends that in the event the order dt. 03.12.2003 whereby the plaintiff''s suit against Mohd. Ibrahim was dismissed for non prosecution were not set aside, it would adversely affect the merits of the appeal laid before this Court.

In my considered opinion, the apprehension of the counsel for the petitioner are completely misplaced. The regular first appeal No. 472/2003 pending before this Court at the instance of the plaintiff would be addressed by this Court on facts and law and not pressing of the suit for injunction laid by the plaintiff against Mohd. Ibrahim would be of no consequence to the adjudication of the said appeal. Consequently, in my considered opinion, the Courts below have not committed any error of jurisdiction in refusing recall of the order dt. 03.12.2003 and the impugned order is neither perverse nor suffers from misdirection in law. Mr. Mahesh Gupta counsel for the respondents agrees that the rights of the parties will be finally adjudicated on the merits of their respective cases in regular first appeal no. 472/2003 pending before this Court notwithstanding the dismissal of the plaintiff''s suit for injunction for "non-press" on 03.12.2003.

In view of aforesaid, I find no force in the writ petition. The writ petition deserves to be dismissed. However, it is made clear that not pressing of the suit for injunction before the trial Court by the plaintiff would not prejudice his case in regular first appeal 472/2003 pending before this Court. The writ petition stands disposed of, with the aforesaid observations.