HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 736 of 2010 (M/S) Mohd. Umar. ……..Petitioner Versus G.B. Pant University and another. .…….Respondent Shri T.A. Khan, Advocate for petitioner, Shri Rajendra Dobhal, Senior Advocate, assisted by Ms. Geeta Parihar, Advocate for the respondents. Dated: May 20, 2010 Hon’ble V.K. Bist, J. Heard Shri T.A. Khan, the learned counsel for the petitioner, Shri Rajendra Dobhal, Senior Advocate for the respondents and perused the record. 2. Present petition has been filed by the petitioner for the following reliefs:- 1. To issue a writ or direction in the nature of certiorari quashing the judgment and order dated 23.04.2010 passed by Addl. District Judge/3rd F.T.C., Udham Singh Nagar in Misc. Civil Appeal No. 21 of 2010 (annexure 1 to the writ petition), 2. To issue suitable directions directing the Court of Addl. District Judge/3rd F.T.C., Udham Singh Nagar to decide the Misc. Civil Appeal No. 21/2010 on merit, 3. To issue suitable directions to the respondents to provide the electricity and water supply to the petitioner in quarter No. 660 Section-3, Category-3 as well as the Chakki situated in Sector-3, within the limits of the respondent no.1, during pendency of the Misc. Civil Appeal No. 21/2010 before the Court of Addl. District Judge/3rd F.T.C., Udham Singh Nagar. 4. Any other relief which this Hon’ble Court may deem fit and proper may kindly be issued in favour of the petitioner and against the respondents, 5. To award the cost of the petition in favour of the petitioner and against the respondents. 2 3. Perusal of the record reveals that the petitioner instituted a suit bearing Civil Suit No. 12 of 2010 before the Civil Judge (Jr. Div.), Rudrapur, District Udham Singh Nagar seeking permanent injunction against the respondents not to interfere in the possession and occupation of quarter no. 660, Sector-3, Category-III, Pantnagar, District Udham Singh Nagar. Alongwith the suit, an interim injunction application under Order-39 Rule 1 & 2 of the Code of Civil Procedure, 1908 was also moved by the petitioner, to which the respondent filed their objection. On 15.03.2010, while considering the interim injunction application, the learned Trial Court did not find favour of the petitioner and rejected his interim injunction application holding that the plaintiff failed to prove his prima-facie case, balance of convenience and irreparable loss. Aggrieved with the said order, the petitioner preferred Misc. Civil Appeal No. 21 of 2010 before the District Judge, Udham Singh Nagar. The said appeal was received by transfer to the Court of Addl. District Judge/3rd F.T.C., Udham Singh Nagar who also dismissed the appeal. Perusal of the record also reveals that during the pendency of the Misc. Appeal, the suit of the petitioner bearing Civil Suit No. 12 of 2010 was also dismissed in default on 06.04.2010, therefore on this ground also the learned Appellate Court dismissed the Misc. Civil Appeal No. 21 of 2010 vide order dated 23.04.2010 observing that since the suit of the petitioner has already been dismissed on 06.04.2010, the appeal of the petitioner has rendered infructuous. I do not find any illegality of perversity in the order dated 23.04.2010 passed by the Appellate Court, consequently the writ petition is liable to be dismissed. 3 4. Learned counsel for the petitioner submitted that since on the same day i.e. on 23.04.2010 when his suit was dismissed in default, he moved a restoration application which was allowed and the suit filed by the petitioner was restored to its original number. Subsequently, he also moved application for recall of the order dated 23.04.2010 passed by the Appellate Court passed in the Misc. Civil Appeal No. 21 of 2010, which is still pending and 29th May, 2010 is fixed in his recall application. 5. For the reasons narrated above, the writ petition is dismissed. However, keeping in view the facts and circumstances and in the interest of justice, the concerned Appellate Court is directed to take decision on the recall application of the petitioner on the next date fixed i.e. on 29th May, 2010. No order as to costs. 6. Learned counsel for the petitioner further submitted that the concerned Addl. District Judge/3rd F.T.C., Udham Singh Nagar has proceeded on leave till 30th June, 2010, hence his recall application shall not be taken up till the Presiding Officer resumes her duties. But it is open for the petitioner to move application before the District Judge for transmitting the case to any other competent Court. 7. Interim relief application (CLMA No. 3628 of 2010) stands disposed of. (V.K. Bist, J.) 20.05.2010 NCM: