Kanchan Bai vs Ketsidas and Others

Milap Chandra, J.—This application has been moved for reviving the Revision Petition No. 307/86 which was dismissed as infructuous on the ground that the suit out of which it arose had been rejected under Order 7, Rule 11, C.P.C.

It was contended by the learned counsel for the petitioner that it is clear from the order dated January 17, 1989 passed by this Court in the said revision petition that it was dismissed as becoming infructuous on the grounds that the plaint had been rejected on 23-11-1985 under Order 7, Rule 11, C.P.C. the order dated 23-11-1985 rejecting the plaint has been set aside; the suit has stood restored to its original number, as a result thereof, the injunction order giving rise to the revision petition has also stood revived and, therefore, the revision petition be taken on record and be decided on merits. He relied upon Ganesh Prasad Sah Kesari and Another Vs. Lakshmi Narayan Gupta, Binayak Swain Vs. Ramesh Chandra Panigrahi and Another, Binayak Swain v. Ramesh Chandra AIR 1934 Mad 49, Saranatha Ayyangar v. Muthiah Moopanar AIR 1935 Madras 365 (FB), Nandipati Rami Reddi and Others Vs. Nandipati Padma Reddy and Others, ''Nandipati Rami Reddi v. Nandipati Padma Reddy.

In reply, it was contended by the learned counsel for the non-petitioners Nos. 1 to 8 that the temporary injunction giving rise to the Revision Petition No. 307/86 came to an end on the rejection of the plaint by order dated 23-11-1985 it did not stand revived on the order of the appellate Court setting aside the order rejecting the plaint, as such the temporary injunction giving rise to the said revision petition does not exist today and there is no question of its revival. He further contended that a fresh application for injunction was moved by the plaintiffs after the revival of the suit, the trial Court has issued an injunction on this application and the petitioner has filed an appeal against this order in the Court of the District Judge, Bhilwara. He relied upon AIR 1955 Mys 91 (FB) Abdul Hamid Vs. Karim Bux and Others, Ranjit Singh Vs. Dr. Sarda Ranjan Prasad Sinha, Ranjit Singh v. Dr. Sarda Ranjan Prasad Sinha, and AIR 1975 Patna 42, Gopi Halwai v. Bibi Zainab Khatoon.

In reply to the aforesaid contentions of the learned counsel for the non-petitioners, Mr. Samdariya contended that concession made by an Advocate of a party on a point of law is not binding on the party.

While disposing of the Civil Revision Petition No. 307 of 1986, this Court observed in its order dated January 17, 1989 as under:--

"The question relating to temporary injunction and the Civil Revision No. 307/ 86 arising out of it may be disposed of at the outset. It is obvious that on termination of the suit in the trial Court, by rejection of the plaint on 23-11-85, the temporary injunction granted by the trial Court also came to an end, with the result that the appeal pending against grant of temporary injunction had become infructuous. That appeal, therefore, should have been dismissed on this ground and not on merits. For the same reason, Civil Revision No. 307/86 also is infructuous inasmuch as the temporary injunction granted by the trial Court on 28-5-1984 has already come to an end with rejection of the plaint by the trial court on 23-11-1985, whereby the suit terminated in the trial Court."

It is not in dispute that the civil suit giving rise to the said revision petition No. 307/86 has been remanded and restored to its original number.

The only question for consideration in this application is whether on the setting aside of the order of rejection of the plaint and its remand by the appellate Court, the temporary injunction issued by the trial Court stood revived? It is well settled law that interlocutory orders which are meant to aid and supplement the ultimate decision arrived at in the main suit or appeal would be ancillary order and such order would stand revived automatically on the restoration of the suit. Orders granting temporary injunction do not aid and supplement the ultimate decision of the suits. As such they cannot be said to be ancillary orders. Relying upon '' Abdul Hamid Vs. Karim Bux and Others, and Gangappa v. Boregowda AIR 1955 Mys 91 (FB), it has been observed in Nagar Mahapalika v. Ved Prakash AIR 1976 Allahabad 264 at pp. 265 and 266 para 4, as follows:--

"It has been a consistent view of this Court that an interlocutory order like an order passed on application for temporary injunction or for attachment before judgment would cease on the dismissal of the suit and would not automatically be revived nor can be deemed to be in force without any further order by the Court after the suit is dismissed. It is always open to the plaintiff to move the Court if the suit which had been dismissed for default is restored to grant temporary injunction. But the earlier interim injunction order which had ceased to be operative on the dismissal of the suit for default would not automatically revive on the setting aside of the dismissal order and the restoration of the suit."

Reference of Ranjit Singh Vs. Dr. Sarda Ranjan Prasad Sinha, Gopi Halwai Vs. Bibi Zainab Khatoon and Another, Gopi Halwai v. Bibi Zainab Khatoon may also be made here. The facts of the cases reported in Ganesh Pd. v. Laxmi Narain AIR 1985 SC 954 , and Binayak Swain Vs. Ramesh Chandra Panigrahi and Another, are qaite different and distinguishable. In the first case, the defence was struck out and obviously an order striking out defence is an ancillary order. In Binayak Swain Vs. Ramesh Chandra Panigrahi and Another, question of restitution u/Section 144, CPC was involved. It is correct that Saranatha Ayyangar v. Muthiah Moopanar AIR 1934 Mad 49 supports the view of the learned counsel for the applicant. In Tavvala Veera-swami v. Pulim Ramanna AIR 1935 Mad 365 (FB), question of attachment before judgment was involved. The latest view on the matter has been expressed in the above quoted case of Allahabad High Court.

There is yet another aspect of the matter. Admittedly, the order rejecting the plaint had been set aside by the appellate Court before the order dated January 17, 1989 was passed by this Court holding that the revision petition has become infructuous due to the rejection of the plaint. By this order dated January 17, 1989, the miscellaneous appeal No. 90/86, filed against the order of the appellate Court remanding the case, was also disposed of and it was clearly observed in the order "I may, however, observe that since the suit itself is pending as a result of the challenge to the order of the rejection of the plaint, it would be open to the plaintiff to seek a temporary injunction in the appropriate Court where the matter may be pending at the relevant time." In view of the aforesaid findings, it cannot now be held that on the setting aside of the order of rejection of the plaint, the injunction order stood revived. The order dated January 17, 1989 is not open for review. Moreover, the application under consideration has not been moved under Order 47, Rule 1, C.P.C.

While parting with the case, it is necessary to observe that the petitioner filed the suit for the redemption of the suit property in the year 1965, it was decreed, the second appeal was dismissed by this Court on 21st September, 1981 and the Special Appeal(SIC) dismissed by the Hon''ble Supreme Court(SIC) 3rd October, 1983. The petitioner has(SIC) restrained from executing this deer(SIC) injunction granted in the suit of the oppos(SIC) parties. Justice demands and equity warrant(SIC) that this suit should be decided as early a(SIC) possible.

Consequently, the application is dismissed with no order as to costs. It is hoped and trusted that the suit filed by the opposite parties is decided expeditiously by the trial Court.