- (1.) Heard learned Counsel for the petitioner and Sri Manish Kumar, learned Counsel for the respondent No. 1 and perused the records. The petitioner filed a suit for permanent injunction before the respondent No. 1, which was registered as Regular Suit No. 1192 of 2003, on which, notices were issued and objections were also filed. The Trial Court, vide order dated 12.11.2003, granted injunction in favour of the petitioner, restraining the opposite parties from raising constructions. Thereafter, the petitioner has filed a writ petition, bearing No. 1483 (MS) of 2009, before this Court on the ground that despite the ad interim order, dated 12.11.2003, the construction was going on. This Court, vide order dated 20.3.2009, disposed of the writ petition with a direction to the Trial Court to decide the application on the date fixed, in compliance thereof, the Trial Court, vide order dated 22.12.2009, decided the petitioner's application on 22.12.2009, directing the opposite parties to comply the ad interim order dated 12.11.2003. Subsequently, as none of the police authorities visited the disputed site and restrained the respondents from raising constructions, the petitioner moved another application on 12.3.2010 under section 151, C.P.C. but as the same was not decided and as such, the petitioner has again approached this Court by filing writ petition No. 1742 (MS) of 2011, This Court, vide order dated 26.4.2011, disposed of the writ petition with a direction to the Trial Court to decide the petitioner's application moved under section 151, C.P.C. dated 12.3.2010 in Original Suit No. 1192 of 2003, if the same is pending, in accordance with law, within a maximum period of six months from the date of receipt of a certified copy of this order. Learned Standing Counsel submits that though this Court, vide order dated 26.4.2011 passed in writ petition No. 1742 (MS) of 2011, has already been directed to decide the petitioner's application moved under section 151 C.P.C. within six months but instead of pressing his relief's before the Trial Court, he filed the instant writ petition, which is misuse of process of law and as such, the writ petition deserves to be dismissed with heavy costs.
(2.) Admittedly, in case there is violation of an injunction order passed by the Civil Court, the appropriate remedy for the petitioner would be under Order XXXIX, Rule 2-A of the Code of Civil Procedure, particularly in view of the fact that the injunction order relates to the construction on the spot which can be more appropriately dealt with by the Trial Court which can adjudicate upon disputed questions of fact and can also take action for disobedience of its own order. It is not specifically explained in the memo of the writ petition as to why the said remedy has to be bypassed by filing this petition.
(3.) Since on knowing the provisions of Order XXXIX, Rule 2-A of the Code of Civil Procedure by Sri P.K. Srivastava, learned Counsel for the petitioner and further Sri P.K. Srivastava, Advocate, has filed earlier a writ petition, bearing No. 1742 of 2011 (MS), for same cause of action, which arose in the instant writ petition and this Court, vide order dated 26.4.2011, directed the Trial Court to decide the petitioner's application under section 151 of the Code of Civil Procedure within six months and without expiry of six months, Sri P.K. Srivastava, Advocate, has filed this writ petition, instead of filing an application for under Order XXXIX, Rule 2-A of the Code of Civil Procedure before the Trial Court, the conduct of Sri P.K. Srivastava is highly deprecated and it is completely misuse of process of law.;