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Tajay v. State Of U.P. And Others - WRIT - C No. 11052 of 2006 [2006] RD-AH 4263 (22 February 2006)


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Heard the learned counsel for the petitioners.

The petitioners by virtue of this petition challenge the order dated 16.1.2006 whereby the trial court has passed exparte temporary injunction order and has also made a prayer for disposal of the suit pending before that Court.

The learned counsel contends that the court below had no jurisdiction to entertain the suit in view of a Full Bench decision of this Court in Similesh Kumar Vs. Gaon Sabha, Uskar, Ghazipur and others, 1977 RD 408 and also a case of Ram Kumar and others Vs. State of U.P. and others, 2005 (99) RD 823. It is contended that some lease was granted by Gaon Sabha which was subsequently confirmed by the Assistant Collector concerned. Later on the Gaon Sabha has challenged this lease and has come in a suit before the Civil Court. It is further submitted that in view of the aforesaid case law, such suit is not cognizable by the Civil Court and it is specifically barred and no temporary injunction in that regard should have been granted.

In the first place it is mentioned that the exparte temporary injunction was granted by the trial court rightly or wrongly, it is an order subject to appeal under Order XLIII Rule 1 (r ) C.P.C. and the recourse to that remedy available to the petitioner should have been taken. On the other and, if the suit is not cognizable by the Civil Court and yet has been entertained, an application under Order VII Rule 11 C.P.C. should have been given to the trial court itself for dismissing the suit at the initial stage itself. But without availing of these alternative remedies, which are also effective in nature, the petitioners have jumped to this Court in extra ordinary jurisdiction under Article 226 of the Constitution of India.

The petition, therefore, is hereby dismissed for the availability of alternative remedy. It is, however, also observed that the petitioners if approach the trial court with an objection that the suit is not cognizable and entertainable in Civil Court, that shall be duly taken up and considered expeditiously by the trial court which would dispose it of after inviting objections of the respondent/plaintiff latest within a period of three weeks.




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