Sabhajeet Yadav, J. - (1.) -Ref:- Civil Misc. Recall Application No.67420 of 2005. By this recall application the applicant-respondent no.2 has sought recall of the order dated 24.2.2005 passed by this Court in above noted writ petition, whereby this Court has passed the following order:- "According to the petitioner's case, the property in question belongs to the waqf board and the petitioner has been appointed as Secretary of the area of Allahabad and Kaushambi by the waqf board. He has instituted a suit no.151 of 2004 in the court of Civil Judge (Junior Division), Allahabad for permanent injunction against defendant-respondent no.2. In the aforesaid suit an application for ad-interim injunction has also been moved by the petitioner under Order 39 Rule 1 Civil Procedure Code After hearing the petitioner as well as respondent no.2, who was defendant in the suit, the learned trial court has passed an order on 24.1.2004 whereby respondent no.2 has been restrained from interfering and making any new construction over plot no.119 area 0-13-4 and also directed that the petrol pump may not be started without following the legal procedure. The aforesaid order has been passed on 24.1.2004 and a date 23.2.2004 has been fixed for final disposal of application for ad-interim relief. Feeling aggrieved against this order, respondent no.2 preferred Misc. Appeal No.41 of 2004, Baccha Lal v. U.P. Sunni Central Waqf Board before the District Judge Allahabad under Order 43 Rule 1 Civil Procedure Code the learned court below vide impugned order dated 19.2.2004 while admitting and entertaining the misc. appeal has stayed the operation of the order passed by the learned trial court with further clarification that if any competent court will pass any effective order in this regard, the interim order dated 19.2.2004 shall not be effective. Respondent no.2 has been directed to comply with the requirement under Order 39 Rule 3 Civil Procedure Code Feeling aggrieved against this order, the petitioner has filed the above noted writ petition. Without going into the merits of the case, in my opinion, it is to be pointed out that respondent no.2 has opportunity to file objections against the ad-interim injunction granted by the learned trial court on the basis of ex-parte version pleaded by the plaintiff-petitioner, but instead of doing so against the order passed by the trial court, respondent no.2 preferred above noted misc. appeal before the District Judge, Allahabad. It appears that the pendency of misc. appeal before the District Judge, Allahabad will unnecessary delay the proceeding in pending suit and encourage the multiplicity of proceedings. Therefore the order passed by the Additional District Judge, Allahabad in the aforesaid misc. appeal is set aside and the matter is remitted to the trial court for disposal of application moved by the petitioner under Order 39 Rule 1 Civil Procedure Code on merits after affording an opportunity of hearing to both the parties. Till the disposal of the said application finally, the parties are directed to maintain status quo in respect of the property in dispute as existing today on the spot. Thus the misc. appeal pending before the District Judge, Allahabad has been rendered in fructuous. Hence the same is liable to be dismissed as in fructuous in exercise of powers under Articles 226/227 of the Constitution of India. With the aforesaid observations and directions the writ petition is disposed of finally. There shall be no order as to costs."
(2.) By this application the order dated 24.2.2005 passed by this Court is sought to be recalled mainly on the ground that at the strength of the aforesaid order passed by this Court the petitioner is enjoying the fruits of interim order and the application of ad-interim injunction under Order 39 Rule 1 Civil Procedure Code in pending suit has yet not been finally decided. It is also stated in the affidavit filed in support of this application that the petitioner has misled the Court and on the basis of exparte version pleaded in the writ petition the order dated 24.2.2005 has been passed by this Court, whereby the writ petition has been disposed of finally without asking any counter affidavit from the applicant-respondent no.2.
(3.) From the record and order sheet of the case it transpires that the instant application was moved in the year 2005 but the same has not been pressed earlier by the counsel appearing for the applicant-respondent no.2 and on expiry of more than seven and half years from the date of said order today learned counsel for the applicant-respondent no.2 has pressed this application, whereby the order dated 24.2.2005 is sought to be recalled. Copy of the order sheet of trial court has also not been brought on record so as to enable this Court to examine as to whether the disposal of pending application for ad-interim injunction under Order 39 Rule 1 Civil Procedure Code before the trial court is delayed at the instance of applicant-respondent no.2 or at the instance of the petitioner. However, in case the applicant-respondent no.2 is aggrieved by delayed disposal of application for grant of ad-interim injunction the applicant has appropriate remedy for approaching this Court under Article 227 of the Constitution of India seeking relief of expeditious disposal of said application.;