The main legal point established is that a writ of mandamus cannot be issued to a private individual unless under a statutory duty to perform a public duty.

R.H. Zaidi, J.

Heard learned Counsel for the petitioner, learned Standing Counsel and also perused the record of the case.

2. PRESENT petition arises out of the proceedings under Order XXXIX Rules 1 and 2, C. P. C. and is directed against the judgments and orders passed by the Courts below dated 5-12-1990 whereby the trial Court dismissed the application filed by the petitioner for grant of ad-interim injunction and the order dated 20-1-1994 whereby the Appellate Court dismissed the appeal filed by the petitioner against the order of the trial Court.

It appears that petitioner filed Original Suit No. 484 of 1990 against the defendants-respondents for permanent injunction restraining them from taking possession over the shed No. 4, type No. 4, the details of which have been given in the plaint and also applied for grant of temporary injunction restraining the defendants from taking possession of the shed in dispute during pendency of the suit. The application filed by the petitioner was opposed by the defendants respondents. Parties in support of their cases, filed documentary evidence. The trial Court firstly issued a commission to make a local inspection. The Commissioner after making local inspection, submitted its report. The trial Court after going through the material on the record held that petitioner had no prima facie case. The questions of balance of convenience and irreparable injury were also decided against him by its judgment and order dated 5-12-1990. Challenging the validity of the order passed by the trial Court, petitioner filed an appeal under Order XLIII, Rule 1, C.P.C. The Appellate Court after hearing the Counsel for the parties and after going through the evidence on the record, affirmed the findings recorded by the trial Court and dismissed the Misc. Appeal by its judgment and order dated 20-1-1994. Hence, the present petition.

3. LEARNED Counsel for the petitioner vehemently urged that the judgments and orders passed by the Courts below are wholly illegal and they are liable to be set aside. On the other hand, the learned Standing Counsel submitted that the orders passed by the Courts below were concluded by concurrent findings of fact, which are based on relevant evidence on the record. It was also urged that in view of the law laid down by this Court in Ganga Saran v. Civil Judge, Hapur, Ghaziabad and others, 1991 (17) ALR 380, the present petition is legally not maintainable.

4. I have considered the submissions made by the learned Counsel for the parties.

It is not disputed that the two Courts below have refused to grant temporary injunction in favour of the petitioner after recording concurrent findings on the questions of prima facie case, balance of convenience and irreparable injury, which are based on relevant evidence on the record. I do not find any illegality in the said findings, therefore, no case for interference under Article 226 of the Constitution of India is made out.

5. FURTHER, this Court in Ganga Saran's case supra), held as under - ". . . . that a writ of mandamus cannot be issued to a private individual unless he is under statutory duty to perform a duty is in accordance with well established principles regarding writ of certiorari and mandamus and need no reiteration or elaboration at our hand. "

6. IT was also held that: "where an aggrieved party approaches under Article 226 of the Constitution against an order in civil suit refusing to issue injunction to 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 maintainable."

In this case also learned Counsel for the petitioner failed to show that the contesting respondents were under any statutory duty to perform and that petitioner had any legal right for performance of the said duty by the contesting respondents.

7.