V. BHASKARA RAO, J.

( 1 ) THIS revision petition arises from an order in CMA. SR. No. 3086/1997 returning the C. M. A. as not maintainable since the impugned order was passed under Section 151 of the Code of Civil Procedure and not covered by Order 43 Rule 1 Clause (r) of the Code of Civil Procedure.

( 2 ) THE revision petitioner is defendant in O. S. No. 486/1996 and respondent in IA. No. 2450/1996 which is filed under Order XXXIX Rule 1 of the Code of Civil Procedure for temporary injunction. The revision petitioner filed a counter therein and he is contesting the same. While that petition was pending, the respondent-plaintiff filed I. A. No. 3271 /1996 purportedly under Section 151 c. P. C. and sought for a similar remedy though styling it differently. The learned Principal District Munsif, Eluru, allowed that petition on the ground that no counter has been filed by the revision petitioner. Aggrieved by the above order, the revision petitioner filed C. M. A. before the Principal District judge, Eluru, who returned the same on the ground that C. M. A. is not maintainable. It is this order that is assailed in this revision petition.

( 3 ) THE substance of the order in I. A. No. 3271/1996 is one of prohibitory in nature and it is an injunction against the revision petitioner from using the disputed pathway. It is strange that the main petition I. A. No. 2450/1996 was not disposed of and a petition filed subsequently purportedly under section 151 C. P. C. for a similar relief has been disposed of. It is possible that the main petition IA. No. 2450/1996 has undergone some adjournments, but that does not mean that the petitioner therein is entitled to file another petition for a similar relief styling it as one under Section 151 C. P. C. It is to be emphasized that the foundation for a petition under Order XXXIX Rule 1 c. P. C. , is the cause of action pleaded in the suit and hence there cannot be intermittent petitions under the guise of Section 151 CPC on the same cause of action. It is needless to point out in this regard that Order II Rule 2 CPC is a bar. On the other hand if there is an independent cause of action for a petition of this nature, another suit is required to be filed on the basis of such independent cause of action and only then another petition for temporary injunction under Order XXXIX Rule 1 or of the nature on hand.

( 4 ) I shall now advert to the impugned endorsement returning the C. M. A. as not maintainable. The question is whether C. M. A. lies against the order in IA. No. 3271 of 1996, dated 24-1-1997.

( 5 ) SRI Challa Kodandaram, learned Counsel for the revision petitioner contended that any prohibitory order of the nature of injunction has to be treated as one under Order XXXIX Rule 1 or Rule 3 CPC though Section 151 cpc is also invoked in such petitions and that the Court passes such an order in exercise of powers under Order XXXIX Rule 1 or Rule 2 CPC and there being a specific provision in this regard, Section 151 CPC has no application. He relied on a Judgment of the Supreme Court reported in Firm Ishardass vs. Parkash Chand for the above proposition. He further contended that since no counter is filed by the revision petitioner, the learned Principal District Munsif, eluru, appears to have passed the order under appeal which is virtually an ex parte order and in that view of the matter also CMA lies against that order under Order XLIII Rule l (r) CPC as held by this Court in Andhra University vs. P. V. N. Raju, Balaiah vs. Aravindanagar Co-op. Housing Society and e. Mangamma vs. A. Muniswamy Naidu.

( 6 ) AS the impugned endorsement was passed by the learned Principal district Judge in CMASR. No. 3086/1997 even before it is numbered, the other side was not given notice in that Court and hence no notice is considered necessary in this CRP.

( 7 ) I considered the contentions of Sri Kodandaram in the light of the authorities cited by him. In the judgment cited supra (1), the Supreme Court considered

Click Here to Read the rest of this document