Rattan Lal and Others vs Tulsi Ram

Kuldip Singh, J.—The Petitioners, who were Plaintiffs, have filed this revision against the order dated 13.5.2010 passed by the learned Additional District Judge, Ghumarwin in Civil Appeal No. 28-14 of 2010 permitting the Respondent to withdraw the application under Order 39 Rules 1 and 2 CPC and setting aside order dated 30.7.2010 passed by the learned trial Court ordering status quo with regard to nature and possession of the suit land till the disposal of the suit.

The facts, in brief, are that in the suit filed by the Petitioners, the Respondent had filed an application being CMA No. 95/6 of 2009 under Order 39 Rules 1 and 2 CPC . This application was allowed on 30.7.2010 by the learned trial Court and directed the parties to maintain status quo regarding the nature of the suit land till the final decision of the main suit. The Respondent filed an appeal against the order dated 30.7.2010. He filed an application under Order 23 Rule 1 read with Section 151 CPC for withdrawal of the application under Order 39 Rules 1 and 2 CPC with a prayer to the learned Appellate Court for setting aside the order passed by the learned Civil Judge (Jr. Division)Court No. 1, Ghumarwin whereby the parties were directed to maintain status quo. This application was taken up by the learned lower Appellate Court on 13.5.2011, the application was allowed and the appeal was dismissed as withdrawn and the order passed by the learned trial Court on 30.7.2010 directing the parties to maintain status quo with respect to nature of the suit land till the disposal of the main suit was also set-aside. The order dated 13.5.2011 has been assailed in the present revision.

Mr. G.D. Verma, learned Senior Advocate has submitted that the Petitioners were not given an opportunity by the learned Additional District Judge for filing reply to the application under Order 23 Rule 1 CPC . He has submitted that the order of status quo was in favour of the Petitioners and, therefore, the Petitioners had right to file reply to the application. It has been submitted that the order dated 13.5.2011 is therefore, liable to be set-aside as the Petitioners were not heard.

I have gone through the order dated 13.5.2011. The Petitioners No. 1 and 3 on 13.5.2011 were represented by an Advocate before the learned Additional District Judge. The Petitioners No. 2 and 4 were not present in the lower Appellate court and they were already stood exparte.

The suit was filed by the Petitioners and in their suit the Respondent had filed an application under Order 39 Rules 1 & 2 CPC and the trial Court had passed the order of status quo on 30.7.2010. The perusal of order dated 13.5.2011 nowhere indicates that the counsel representing Petitioners No. 1 and 3 in the lower Appellate Court prayed time for filing reply to the application in the learned lower Appellate Court. It cannot be said that Petitioners No. 1 and 3 were not heard by the learned lower Appellate Court when the order dated 13.5.2011 was passed in presence of their counsel. In the grounds of revision, there is no specific averment that a specific request was made before the learned Additional District Judge for filing reply to the application under Order 23 Rule 1 CPC filed by the Respondent.

It has also come on record that on the application of the Petitioners the trial Court on 8.11.2007 by way of interim order had directed the parties to maintain status quo regarding nature and possession of the suit property. The order dated 8.11.2007 was assailed by the Respondent etc. and in appeal, the learned District Judge on 27.9.2008 allowed the appeal and set-aside the order dated 8.11.2007 passed by the learned trial Court under Order 39 Rule 1 and 2 CPC . CMPMO No. 426 of 2008 against the order dated 27.9.2008 was filed and the same was disposed of on 16.10.2008 observing that it is not open to any Court to hold a mini trial while disposing of an application under Order 39 Rules 1 and 2 CPC but ultimately did not set-aside the judgment dated 27.9.2008 of the learned District Judge save and except that some observations were made in the judgment dated 16.10.2008 regarding the manner in which the matter was appreciated by the learned District Judge in the judgment dated 27.9.2008.

In any case, in my view, the application was to be disposed of on question of law and nothing has been pointed out that in reply what was to be traversed on facts. The Respondent, who was Defendant under Order 39 Rule 1(a) could seek injunction on limited grounds in the suit filed by the Petitioners. The status quo order was passed on the application of Respondent. He moved for withdrawal of said application. The interim order cannot be equated with final judgment which decides some issues between the parties finally unless set aside in appeal or revision. The interim order dated 30.7.2010 was interim measure unlike final judgment. The order dated 30.7.2010 had not decided any issue finally in favour of Petitioners. The learned lower Appellate Court has simply permitted the Respondent to withdraw the application under Order 39 Rules 1 and 2 CPC filed by Respondent in the Court below. No liberty was given to the Respondent. The necessary consequence of permission to withdraw the application was to set-aside the order dated 30.7.2010. In these circumstances, it cannot be said that the learned lower Appellate Court has not exercised jurisdiction legally. There is no merit in the revision which is accordingly dismissed, so also the pending applications, if any.