Narendra Kumar vs Nagar Nigam,Bareilly & Ors.

Umeshwar Pandey, J.—Heard learned Counsel for the parties.

This petition is directed against the judgment and order dated 1422006, passed by the Revisional Court in a suit for permanent injunction. The petitionerplaintiff moved an application for grant of temporary injunction under Order XXXIX, Rules 1 and 2, C.P.C., upon which the Trial Court issued notices to the defendantsrespondent Nos. 1 to 3, vide Annenxure No. 2, and fixed a date for objection and disposal of the temporary injunction matter. The petitionerplaintiff went in revision against that order which was though entertained but was found to be not maintainable and after hearing both the parties the Revisional Court discussing the merits of the respective cases of parties, passed the impugned order directing the Trial Court to hear the temporary injunction matter and then pass suitable orders in that regard.

The learned Counsel for the petitioner contends that the Revisional Court directed that the revision was not maintainable and it required the trial Court to hear the temporary injunction matter and dispose of the application of the petitioner and objections of the respondents on merits. It was not in the fitness of things for the said Court, to have gone into the merits of the matter which is likely to prejudice the case of the plaintiff writ petitioner before the Trial Court.

The submissions made by the learned Counsel for the petitioner are wholly justified. It is obvious that a revision under Section 115 of the Code of Civil Procedure is not maintainable against the order of the Trial Court directing the issuance of notices and fixing a date for disposal of such injunction matter and if the Court has chosen to pass orders on merits and then to direct the Trial Court to dispose of the injunction matter, such discussion of merit is wholly unjustified. The revision was definitely not maintainable and the Revisional Court was justified in passing the order to that effect only and the matter has been remanded there. But instead of doing that the Court has gone beyond its jurisdiction and has passed orders making certain observations in the judgment which are definitely to prejudice the interest of the petitioner. Therefore, in this view of the matter while disposing of this petition it is directed that the Trial Court while looking into the temporary injunction matter for its disposal on merits will not have any regard to the observations made by the Court of District Judge in its revisional jurisdiction in the present matter. In the impugned order the Trial Court after exchange of the affidavits by respective parties will take up the said temporary injunction matter and dispose it of at the earliest.

In case counteraffidavit has not been filed as yet the respondent shall file it within a period of one week hereinafter before the Court below.