- (1.) THIS is a Second Appeal against the judgment and decree dated 31-10-1981 passed by Sri S. K. Verma the then learned II Additional District & Sessions Judge, Barabanki, dismissing the Appeal No. 47 of 1981 and affirming the judgment and decree dated 2-3-1981 passed by Munsif, Barabanki.
(2.) THE facts giving rise to this appeal are that Ejaz Ali had filed Suit No. 49 of 1972 for obtaining possession over the disputed land against Maiku, ancestor of the respondent Autar etc. the suit was decreed on 2-10-1971 ex parte. Ejaz Ali obtained possession over the plot on 14. 7. 1973. When the respondents came to know of the ex-partedecree, they moved application which resulted in setting aside of the ex- partedecree. THE plaintiff, Ejaz Ali went upto the Hon'ble High Court against the order setting aside the ex-partedecree but the order remained farce (sic ). THE original suit was therefore restored to its number. THEreafter the respondents moved the application under Section 144 CPC for obtaining possession over the disputed land. The learned trial Court has allowed the application (3 Kha) under Section 144 CPC and has ordered the opposite parties to take away the materials within a month otherwise the applicants shall be entitled to get the possession including the disputed constructions. This order passed by the learned trial Court has been affirmed in appeal. Feeling aggrieved the present appellant has preferred this appeal. I have heard the learned counsel for the parties and have gone through the record.
(3.) THE following question of law is being formulated as per the proviso of Section 100 CPC which has been ennuciated in legal question 5 of the memo of appeal. THE legal substantial question 5 mentioned in the memo or appeal runs as under: "whether grant of one month's time for removal of pucca construction of 6 shops standing on the land in question was justified in the present case. " One of the first and highest duties of all Court is to take care that the act of the Court does no injury to any of the suitors and when the expression 'the act of the Court' is used, it does not mean merely the act of the Primary Court or of any intermediate Court of Appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It would be inequitable and contrary to justice that the applicant be restored to his property without making good the materials used in constructions sought to be demolished. As held by the Hon'ble Privy Council in the ruling reported in AIR 1922 Privy Council 269, Jai Berham and othersv. Kedar Nath Marwari and others.;