- (1.) D. K. Seth, J. Mr. D. S. M. Tripathi, learned Counsel for the petitioner, whilesupporting the application for recalling the order dated 27-4-1998, contends that the order was passed in his absence. After having gone through the application and hearing Mr. Tripathi, it appears that there were sufficient grounds that prevented him from appearing in the case when the matter was taken up on the said date. Therefore, the application is allowed and the order dated 27-4-1998 is recalled.
(2.) IMMEDIATELY thereafter Mr. Tripathi asked, in view of urgency of the matter, to take up this matter for argu ments. Accordingly, it is taken up for hear ing. Mr. Tripathi contends that the writ petition was dismissed by order dated 27-4-1998 altogether on a misplaced view taken by this Court. In fact by the said order dated 27-4-1998 the writ petition was dismissed as not maintainable on the ground that the writ petition arises out of an order passed in civil suit refusing to grant injunction, and therefore, any order passed in this case would amount to issue of a mandamus against a private individual since both the parties are private individuals without any public duty, relying on the decision in the case of Ganga Saran v. Civil Judge, Hapur, AIR 1991 All 114.
(3.) IN order to appreciate the conten tion, it would be useful to quote said order hereinafter: "original suit No. 250 of 1991 was filed for mandatory injunction restraining the respon dents 3 to 5 from interfering with the possession of the petitioners in respect of the suit property from making any construction thereon and demolishing or damaging any construction ex isting thereon. Alongwith the said suit, an ap plication for temporary injunction was also filed. An interim order was issued thereon vide order dated 14-3-91. Ultimately, the said application was contested by the respondent No. 3 and the application for temporary injunction was dis missed by the order dated 13-8-1991. An appeal was filed, numbered as Appeal No. 279 of 1991. The Additional District Judge, Jaunpur by his order dated 8- 10-1991 dismissed the said ap peal. These are the two orders which are chal lenged in the present writ petition. The question boils down to the grant or refusal of injunction in between the two private individuals who do not have any public or. statutory to discharge. Grant of injunction in such case would amount to grant of mandamus which is not available in dispute between two such private individuals. A Full Bench of this Court in the case of Ganga Sharon v. Civil Judge, Hapur, AIR 1991 All 114, has held that such writ petition is not maintainable. Following the ratio in the case of Ganga Sharon (supra), this writ petition is dismissed as not maintainable. There will be no order as to costs. The interim order dated 24-7- 1992shall stand discharged. " Relying on the decision in the case of Ganga Saran (supra), Mr. Tripathi contends that in paragraph 11 of the said judg ment, the Full Bench had held that in a situation where revision is barred against the appellate or revisional order passed by the District Courts and the said order suf fers from patent error of law and further would cause substantial injustice to the party aggrieved, can it be said that such order is not amenable to the extraordinary 'jurisdiction of the High Court under Art. 226 of the Constitution ? In answer to the said question, it was observed in the said paragraph to the extent that in the opinion of the Court although every interlocutory order passed in a civil suit is not subject to review under Article 226 of the Constitu tion, but if it is found from the order im pugned that fundamental principles of law has been violated and further such order causes substantial injustice to the party aggrieved, the view taken by the Supreme Court in Qamruddin's case, 1990 AWC 308 will not preclude such a writ being issued by the High Court under Article 226 of the Constitution. While limiting extent of the scope of invoking writ jurisdiction, the Full Bench had also followed the ratio decidendi in Qamruddin's case to the extent that a writ of mandamus cannot be issued to private individual under Article 226 of the Constitution unless such private in dividual has statutory duty to perform a public duty. Where the aggrieved party approaches the High Court under Article 226 of the Constitution against an order passed in a civil suit refusing to issue in junction to a private individual, who has no statutory duty to perform a public duty or vacating an order of injunction, the main relief is for issue of a writ of man damus to a private individual and such a writ petition under Art. 226 of the Con stitution would not be maintainable.;