Ram Chander vs Harbhajan Singh

J.V. Gupta, J.

This revision petition directed against the order of the Additional District Judge, Karnal, dated September 11, 1985, whereby the order of the trial Court directing status quo regarding possession to be maintained by the parties till the decision of the suit was set aside and the plaintiffs were restrained from dispossessing the defendant Harbhajan Singh from the disputed property otherwise than in due course of law.

The plaintiffspetitioners filed the suit for declaration and possession. In the suit, the defendant moved an application for the grant of a temporary injunction restraining the plaintiffs from taking forcible possession of the land, in dispute, from him except in due course of law. That application was contested on behalf of the plaintiff inter alia on the ground that no such application was maintainable. However, the learned trial Court disposed of the same with the order that status quo regarding possession be maintained by the parties till the decision of the suit. However, defendant Harbhajan Singh feeling aggrieved against the said order filed an appeal before the Additional District Judge. The learned Addl. District Judge set aside the said order of the trial Court and directed that the plaintiffs were restrained from dispossessing the defendant from the disputed property otherwise than in due course of law. Aggrieved against the same, the plaintiffs have filed this revision petition in this Court.

The revision petition was admitted and it was contended at the time of the motion hearing that the relief under Order XXXIX rule 1(c) of the Code of the Civil Procedure, (hereinafter called the Code), could not be granted to the defendant. At the same time, status quo was ordered to be maintained till further orders.

The learned counsel for the petitioners contended that in the suit filed by the petitioners, no such application for the grant of the temporary injunction was maintainable on behalf of the defendant. According to the learned counsel, clause (c) to rule 1 of Order XXXIX of the Code added by way of amendment, makes it abundantly clear that it is only the plaintiff who could move such an application. In support of the contention, the learned counsel relied upon Suganda Bai v. Sulu Bai, AIR 1975 Karnataka 137 and Dalip Kumar v. Ch R.S. Vakil, 1972 Allahabad Law Journal 379. The learned counsel further contended that where final relief could not be granted to the party i.e. the defendant no interim injunction could be issued in this favour. In support of this contention, the learned counsel relied upon Raman Hosiery Factory v. J.K. Synthetics, AIR 1974 Delhi 207 and Ram Kumar v. Tara Chand, AIR 1978 P&H 153.

After hearing the learned counsel for the parties, I find force in the contentions raised on behalf of the petitioners.

Faced with this situation, the learned counsel for the defendantrespondent submitted that the application filed by him be treated to be under section 151 of the Code. This contention is wholly fallacious. Even if for the sake of arguments, it be assumed that the application was under section 151 of the Code, no appeal was maintainable against the said order of the trial Court directing status quo as to possession. However, to meet this contention the learned counsel for the respondents submitted that since the order passed by the learned Additional District Judge is just, this Court should not interfere with the same under section 115 of the Code.

After hearing the learned counsel for the parties, I find that if the order passed by the trial Court is treated to have been passed under section 115 of the Code, then no appeal was competent against the same. The said order is not only without jurisdiction but has caused injustice as well to the plaintiffs. Moreover the position now canvassed that the application filed on behalf of the defendant be treated as the one under section 151 of the Code, has been taken by the defendant in this Court, otherwise, the same was filed under order XXXIX rule 1 of the Code and it was on that account that the appeal was filed against the order of the trial Court passed thereon.

This revision petition accordingly succeeds and is allowed. The impugned order of the appellate Court is set aside and that of the trial Court is restored with costs.