Sushil Harkauli, J. - (1.) THE petitioner is the plaintiff in original suit No. 296 of 1993. By order dated 17.10.98 the trial Court rejected the plaintiff's application for interim injunction with the finding that the plaintiff being out of possession has neither prima facie case nor balance of convenience in his favour. A misc. Appeal No. 197 of 1999 preferred by the plaintiff against the trial Court's order dated 17.10.98 has been dismissed by the impugned order dated 24.7.99. The Appellate Court did not find sufficient ground to interfere with the finding regarding possession recorded by the trial Court.
(2.) NOW , firstly the concurrent finding of fact cannot be upset in writ jurisdiction. Secondly, in the case of "Smt. Parvatibai v. Anwar Ali : 1992(19) ALR 152 (SC)", it was held: Before closing this judgment we would like to emphasise that in cases relating to immovable properties which are governed by the ordinary Civil Law the High Court should not exercise its special jurisdiction under the Constitution unless the circumstances are exceptional. This aspect has been discussed by this Court earlier on several occasions. Thirdly, it has been held by a Full Bench decision of this Court in the case of Ganga Saran v. Civil Judge, Hapur : 1991 (17) ALR 380 (FB), relying upon the decision in the case of Qamruddin v. Rasul Baksh : 1990 AWC 302 (SC). that no writ petition under Article 226 lies against an order of Civil Court refusing interim injunction against a private respondent who is not under a statutory or public duty to do the act sought to be enforced through the injunction. To quote the words of the Full Bench: 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 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.
(3.) THE first argument advanced in this case before me by the learned Counsel for the petitioner was also repelled expressly by the same Full Bench in the following words: Indeed in one case Counsel for the respondent did appear but the said Counsel contended himself by saying that the matter may be sent back to the Lower Court after quashing the impugned order if a writ of mandamus cannot be issued to a private individual under Article 226 of the Constitution. This contention is not correct.;