Purshottam vs Jangali and others

Krishna Murari, J.—Heard learned counsel for the petitioner.

This petition has been filed challenging the order dated 11.03.2010 passed by lower appellate court directing that the appeal may be heard first and thereafter the miscellaneous case will be heard.

Facts giving rise to the dispute are that the plaintiffpetitioner filed a suit for specific performance of contract. A decree of permanent injunction restraining the defendantrespondents not to interfere in the possession of the suit property was also prayed for. The plaintiffpetitioner also moved an application for temporary injunction. Trial court vide order dated 20.04.2005 injuncted the defendantrespondents from alienating or transferring the suit property and not to change its nature. The defendantrespondents went up in appeal. During the pendency of the appeal, an application dated 26.11.2009 was moved with a prayer that the court may either himself or through any Magistrate make a spot inspection and a criminal case be registered against the appellants (respondents herein) and the police authorities. The application was moved on the allegations that in spite of temporary injunction granted by the trial court, defendants were trying to alienate the suit property and were interfering in his possession. The application was registered as miscellaneous case. Thereafter, the petitioner moved another application for deciding the miscellaneous case before hearing of the appeal, whereupon the lower appellate court passed the order impugned herein.

As a matter of fact, since there was already operating a temporary injunction granted by the trial court, which was not stayed or suspended in miscellaneous appeal, if there was any violation of the injunction order, the remedy available to the petitioner was to move the competent court under Order XXXIX Rule 2 A C.P.C.

In any view of the matter, since the lower appellate court has registered the application filed by the petitioner as miscellaneous case, there is hardly any occasion or reason to postpone the hearing of the appeal on the ground that the said miscellaneous case should be decided first. The lower appellate court has rightly not postponed the hearing of the appeal on the said ground.

The writ petition is misconceived and no interference is required in the impugned order.

The writ petition, accordingly, fails and stands dismissed in limine.