JUDGMENT :

RAJNISH KUMAR, J.

1. Supplementary affidavit filed on behalf of the petitioner is taken on record.

2. Heard Shri M.G. Tripathi, learned counsel for the petitioner and Shri Yogesh Singh, learned counsel for the respondent no. 2. The respondent no. 1 is the Court concerned.

3. This petition has been filed for setting aside the order dated 29.05.2023 and part of the order dated 10.05.2023 passed in Original Suit No. 1091 of 2023 (Dwarika Nath vs. Ashok Kumar) before the Civil Judge, Junior Division, Gonda.

4. This Court had passed the following order on 16.06.2023:

“Supplementary affidavit filed today is taken on record.

Based upon the averments made in of the writ petition as also the supplementary affidavit including the photographs annexed thereto, it is stated by the learned counsel for the petitioner that the vide impugned order dated 29.05.2023, the trial court in utter arbitrary manner recalled the order dated 10.05.2023, whereby temporary interim protection was granted by the trial court, after taking note of the order dated 05.05.2023 passed by this Court in writ petition i.e. Matters Under Article 227 No. 2290 of 2023 (Dwarika Nath vs. Additional Civil Judge (Junior Division), Gonda and Another).

He further submitted that on the application for temporary injunction filed in Original Suit No. 1091 of 2023 instituted by the petitioner for permanent injunction, as no order could be passed and the defendant to the suit, private opposite parties herein, were interfering in the possession of the petitioner, the petitioner approached this Court by means of writ petition and this Court disposed of the writ petition with direction to the court concerned to decide the application for temporary injunction within six weeks and also observed that trial court shall also consider grant of interim injunction in case the petitioner (plaintiff) is able to make out the case for the same.

Thereafter, the court passed the order dated 10.05.2023, wherein imposed the condition to the effect that the temporary injunction would be available to the plaintiff-petition till filing of vakalatnama by the defendant-respondent which is not permissible under the provisions as envisaged under order 39 Rule 1 & 2 C.P.C. and based upon this condition/rider, the impugned order after filing of vakalatnama by the defendant has been passed thereby recalled the temporary injunction order dated 10.05.2023, as such indulgence of this Court is required.

Prima facie from the aforesaid as also the photographs annexed with the supplementary affidavit filed today, it appears that matter requires consideration and if the interim protection is not granted then the entire nature of the property would be changed.

Accordingly, let notice be issued to the opposite parties.

Steps be taken within 7 days.

List this case in the week commencing 17.07.2023 as fresh so that the matter may be disposed of as early as possible.

Till the next date of listing, parties to the suit shall maintain status quo.”

5. Thereafter the respondent no. 2 appeared on 17.07.2023 and raised a preliminary objection regarding maintainability of the present petition on the ground that the petitioner has already filed revision bearing Misc. Case No. 290 of 2022, therefore the following order was passed:

“Power on behalf of opposite party no. 2 has been filed by Mr. Yogesh Singh and Mr. Ashish Kumar Singh, Advocates. The same is taken on record.

Learned counsel for answering opposite party submits that against the impugned order, the petitioner has already availed remedy of revision bearing Misc. Case No. 290 of 2023 and therefore, the present petition would not be maintainable.

Learned counsel for petitioner seeks a week's time to obtain instruction with regard to said fact.

List on 24.07.2023, as fresh showing the names of Mr. Yogesh Singh and Mr. Ashish Kumar Singh as counsel for opposite parties.

Interim order granted earlier shall continue till the next date of listing.”

6. In pursuance of the aforesaid order,