RASHID Vs. DISTRICT JUDGE, MIRZAPUR

JUDGEMENT

(1.) BY means of this application, the order dated 19 -2 -96 is sought to be recalled and reviewed on the ground that the same was decided ex -parte without hearing the learned Counsel for the petitioner and that the equity part of the facts involved in the case was lost sight of and that the ratio decided in the case of Ganga Saran v. District Judge, Hapur : 1991 (17) ALR 380 (FB), relied upon in the said case had no manner of application and that because of the judgment substantial injustice had been ensued and that the writ petition was dismissed on the ground of its non -maintainability, though a writ petition is maintainable against an order passed on an application for ad -interim injunction. Learned Counsel for the petitioner Shri K.S. Tiwari has 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 the 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.

(2.) MR . Tiwari 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 is attracted.

(3.) 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 issuing 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.