Md. Nurul Haque Choudhury and Others vs Prafulla Kumar Malakar and Others

Manisana, J.—This revision petition is from an order of the Assistant District Judge Karimganj made on 23.5.90 in Misc Appeal No 59 of 1989 from the order dated 7.9.89 passed by the Munsiff Karimganj in Misc Case No 50 of 1989 arising out of Title Suit No. 167 of 1989.

The impugned order dated 23.5.90 relates to granting of interlocutory prohibitory injunction under Order 39, Rules 1 and 2. CPC by the Assistant District Judge in the appeal. On 3.7.90, this Court admitted this revision petition and passed an interim order suspending the operation of the impugned order. During the pendency of the revision the main suit had already boon dismissed for default on 6.7.90 and an application under Order 9, Rule 9 for setting the dismissal aside is pending.

The question which, therefore, arises for consideration is whether the revision petition has become infructuous.

Mr. M.A. Laskar, the learned Counsel for the Petitioner is contended that, just in case, if the application for restoration of the suit is allowed all the interlocutory orders in the suit including the stay order of this Court passed on 3.7.90 passed before the dismissal shall be revived. He has referred me to the decisions (sic) as Nandipati Rami v. Nandipati Padma AIR 1978 AP (sic)(DB), Ranjit Singh v. Sarda Ranjan AIR 1981 Pat 102 and Bholaram v. Ramendra (1989) 1 GLJ 173, to support his conten-(sic). This bang the position, the revision is to be kept pending till the final disposal of the application for restoration of the suit.

Mr. B.K. Goswami, the learned Counsel for the Respondents (sic) submitted that since the main suit has already been dismissed (sic) the interlocutory orders including the interim order of this Court become honest and, therefore, the revision is to be dismissed as infructuous.

Under Order 39, Rule 1, Code of Civil Procedure, the Court may by order (sic) temporary injunction until the disposal of the suit or until (sic) order. Therefore, the impugned order is an intermediate order (sic) between the commencement and the end of the suit, but it is not a final decision of the whole controversy, and as such, after (sic) disposal of the suit the interlocutory order becomes inoperative.

The question as to whether the interlocutory order passed before the dismissal of the suit for default will be revived on res-(sic) of the suit along with the suit depends upon the order of the court setting aside the dismissal. Order 9, Rule 1, Code of Civil Procedure, provided that if the Plaintiff satisfies the Court that there was sufficient (sic) for his non-appearance when the suit was called on for (sic) the Court shall make an order setting aside the dismissal (sic) such terms as to the costs or otherwise as it thinks fit. (sic) of the provision under Order 9, Rule 1, the Court may (sic) suit without revival of the interlocutory (sic, order) by (sic) specific order.

For the reasons stated above, to decide the question whether the interlocutory order will be revived or not after restorations of the suit is premature at this stage for the suit may not be restored or may be restored with or without revival of the interlocutory orders. After dismissal of the suit, the interlocutory order of injunction become inoperative and, therefore, the revision petition has become infructuous. On the facts and circumstances of the case. I am of the view that if the revision petition is dismissed with a direction that, if the suit is restored along with the interim orders the Petitioner may file an application for reopening the revision petition. I do to accordingly. No costs.