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Dr.Yogendranath Gupta v. Thakur Dwarikadheesh Ji Maharaj & Another - WRIT - C No. 45055 of 2004 [2007] RD-AH 12902 (26 July 2007)


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 (Court No. 23)

Civil Misc. Writ Petition No. 45055 of 2004

Dr. Yogendra Nath Gupta Versus Thakur Dwarikadheesh Ji Maharaj @ Thakur Dwarikadheesh Ji Maharaj, Virajman Mandir ,Thakur Dwarikadheesh Ji Maharaj Mohalla, Bundelkhandi Mirzapur. and others.

Hon'ble S.U.Khan J

Heard learned counsel for the parties.

This is defendants' writ petition. Petitioner is defendant in O.S No. 25 of 1994 pending before Civil Judge, Mirzapur filed by  the  respondents. In the plaint, it has been stated that property in dispute is situate in plot No. 534. According to the learned counsel for the defendant petitioner, in the written statement, it has been stated that property in dispute is situate in plot No. 535. It appears that defendant petitioner filed application for getting the property in dispute and adjoining land surveyed through some survey commission. The said application was rejected by the trial court on 16.8.2004, copy of order is annexure 11 to the writ petition. The main objection of the plaintiff in the said application was that the said application had been filed after conclusion of evidence of plaintiff. It was also stated by the plaintiff that in spite of several opportunities defendants had not adduced his evidence. The trial court mainly held that the sole purpose of the defendant was to delay the proceeding. Against order dated 16.8.2004, Civil Revision No. 218 of 2004 was filed. District Judge, Mathura dismissed the revision on 4.10.2004, hence, this writ petition.

It is true that the defendant petitioner is not showing as much alertness in the proceedings of the suit as is expected. However, attempt to delay the proceedings may be checked by imposing heavy cost. In my opinion, as the dispute is regarding number of the plot in which property in dispute is situate hence survey commission will be quite helpful for deciding the controversy conclusively and authentically. Learned counsel for the petitioner has cited an authority of Supreme Court reported in Sripat Vs. Rajendra Prasad and others JT 2000(7) SC 379. The said authority supports the case of the petitioner. Learned counsel for the petitioner has explained the delay by stating that defendant was expecting that plaintiff would file application for survey hence, he did not file said application. The explanation is thoroughly unsatisfactory. It is rather lame excuse.

In the interest of justice the application for survey deserves to be allowed on payment of Rs.10000/- as costs.

Accordingly writ petition is allowed. Both the impugned orders are set-aside on payment of Rs.10000/- as cost. The cost shall be paid or deposited in trial court on 6.9.2007. On the said date both the parties are directed to appear before the trial court. However, if cost is not paid or  deposited on 6.9.2007 then this order shall stand automatically vacated and writ petition shall be deemed to have been dismissed. It is further directed that the suit must positively be decided before the end of the year and defendant petitioner shall not be permitted to delay the proceeding. If any adjournment directly or indirectly is sought by any of the parties then the same shall be granted on payment of heavy cost which shall not be less than Rs.500/- per adjournment and adjournment must be granted for a very short period.

In the end learned counsel for the petitioner prays for reduction of the cost. I am not least inclined to reduce the cost.

Writ petition is accordingly allowed.




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