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Judgment
Heard on I.A.No.4259/2020 application for review/recall of order dated 13.3.2020, by which application under Order 39 Rules 1 & 2 of C.P.C., was rejected.
As the Coordinate Bench of this Court which passed the order dated 13.3.2020 is not available at Principal Seat, Jabalpur, therefore the matter has been listed before this Bench for review/recall of the order dated 13.3.2020.
By order dated 13.3.2020 the Coordinate Bench of this Court has rejected the application (I.A.No.2378/2020) under Order 39 Rules 1 & 2 of C.P.C.
It is submitted by the learned counsel for appellant that the suit for declaration and mandatory injunction was filed before the Court below (XXIst Additional District Judge, Jabalpur), which was dismissed vide judgment dated 30.1.2020 on merits. First appeal against the judgment and decree was filed by the appellant before this Court, in which an application for temporary injunction under Order 39 Rules 1 & 2 of C.P.C. (I.A.No.2378/2020) was filed supported by affidavit. It is submitted that after hearing both the parties the impugned order dated 13.3.2020 was passed by a Coordinate Bench of this Court, by which the said application was rejected on the sole misconception that the said appeal is second one, while the original suit was filed before the Additional District Judge against which the present appeal which is filed before this Court, is first appeal.
Learned counsel for appellant by filing the said review application has submitted that the order dated 13.3.2020 be recalled and he be heard afresh.
Respondents have not filed any reply to the application, but during the course of arguments it is submitted that the appeal is first one and perhaps by mistake it is observed that it is second appeal. The Court after observing that no prima facie case and no balance of convenience is made out in favour of the appellant as also there is no possibility of irreparable loss, rejected the application on merits, so the said order cannot be recalled.
On going through the judgment of trial Court dated 30.1.2020, it is crystal clear that the appeal was filed before this Court as first appeal. It appears that the order dated 13.3.2020 appears to have been passed on misconception that the appeal is second one, so it was observed that there is no requirement of granting any temporary injunction in favour of the appellant. For ready reference the order dated 13.3.2020 is reproduced, which reads as under :-
"Jabalpur, Dated : 13-03-2020
Shri G.K. Shrivastava, learned counsel for the appellant.
Shri Rakesh Sengar, learned counsel for the respondents.
Learned counsel for the appellant submits that an application (I.A.No.2378/ 2020) has been filed under Order 39 Rule 1 & 2 of CPC praying for grant of temporary injunction on the grounds that there is a prima facie case in favour of the appellant, there is balance of convenience too and during the pendency of the appeal, if the respondents are not restrained from alienating the suit property or raising any constructions, it would cause irreparable loss to the appellant and, therefore, it is prayed that temporary injunction with regard to suit property be granted.
Learned counsel appearing for the respondents has opposed the aforesaid prayer and has submitted that there no prima facie case in favour of the appellant, as the both the Courts below have passed the impugned judgment and decree against the appellant by giving concurrent findings.
On perusal of the records, it is evident that the Courts below have given the concurrent findings against the appellant and, therefore, at this stage, it would be not appropriate to grant temporary injunction in favour of the appellant. Hence, the application (I.A.No.2378/2020) stands rejected.
Let records of the Courts below be requisitioned."
As discussed above, the appeal which was under consideration before this Court is first appeal, so there is no question of concurrent finding of lower Courts (trial and appellate), therefore, the order dated 13.3.2020 appears to be passed under misconception and deserves to be recalled.
Hence, the order dated 13.3.2020 passed in regard to I.A.No.2378/2000 is hereby recalled.
The parties are entitled to argue on the said application, for which time is granted.
In the meanwhile, it is directed that the parties shall not alienate or raise any construction over the disputed site and shall maintain status-quo as it exists today, on the disputed site, till I.A.No.2378/2020 for temporary injunction is decided on merits.
List the matter after four weeks.
C.C., as per rules.