The High Court will not interfere with an order passed by a lower court or tribunal under Article 227 of the Constitution of India if quashing the order would result in restoring an illegal order.

ORDER :

Mahendra Kumar Goyal, J.

1. This writ petition under Article 227 of the Constitution of India has been filed against the order dated 10.08.2020 passed by the Board of Revenue, Rajasthan, Ajmer (for brevity "the Board") whereby, the revision petition filed against the order dated 18.05.2018 passed by the Assistant Collector, Behror, Alwar allowing the temporary injunction filed by the petitioner-plaintiff, has been allowed and the matter was remanded back for decision afresh.

2. Learned counsel for the petitioner submitted that the Board erred in entertaining the revision petition inasmuch as an appeal under Section 230 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as "the Act of 1955") lies before the Revenue Appellate Authority against the order impugned dated 18.05.2018 passed by the Assistant Collector, Behror, Alwar in exercise of its jurisdiction under Section 212 of the Act of 1955. Learned counsel submitted that the Board further erred in passing the order without issuing notices to the petitioner and without calling the record from the learned trial Court. Referring the ad-interim order dated 22.03.2017 passed by the trial Court in her application under Section 212 of the Act of 1955, he submitted that it was made absolute vide order dated 18.05.2018; but, on account of clerical error, the date of the order came to be mentioned as 22.03.2018 and had she was given an opportunity to appear before the Board, she would have explained the same. He, therefore, prayed for quashing the order dated 10.08.2020.

3. Learned counsel for the petitioner relied upon the judgment of this Court dated 29.11.2019 in case of Kanaram & Ors. v. Mahaveer & Ors. S.B. Civil Writ petition No. 19960/2019 in support of his submissions.

4. Per contra, learned counsel appearing for the respondent Nos. 1 & 2/defendants submitted that the learned trial Court has finally decided the application filed by the petitioner under Section 212 of the Act of 1955 in slip-shod manner, without even referring as to how she was able to establish the prima-facie case, balance of convenience and irreparable loss in her favour. He submitted that in these circumstances, the Board did not err in setting aside the same and remanding the matter back to the learned trial Court for decision afresh. He, therefore, prayed for dismissal of the writ petition.

5. Heard learned counsels for the parties and perused the record.

6. Though, the approach of the Board in entertaining the revision petition and setting aside the order dated 18.05.2018 without issuing notices to the respondents therein, cannot be countenanced, however, a perusal of the order dated 18.05.2018 reveals that the learned trial Court has allowed the temporary injunction application filed by the petitioner in most casual manner by simply observing that the issues of prima-facie case, balance of convenience and irreparable loss stand established in her favour without referring the pleadings, evidence or submissions of the parties in support thereof. This Court is in respectful agreement with the judgment of this Court in case of Kanaram & Ors. (supra); but, it is well established principle of law that if by quashing an order passed without jurisdiction/illegally results into restoring another illegal order, the Court would be loathe in interfering with such order. Hon'ble the Apex Court of India has, in case of Commissioner of Income Tax, Shimla v. Greenworld Corporation, Parwanoo & another connected matter reported in (2009) 7 Supreme Court Cases 69, held as under:-

"66. It is now well settled that this Court in exercise of its extra-ordinary jurisdiction under Article 136 of the Constitution of India may, in the event an appropriate case is made out, either refuse to exercise its discretionary jurisdiction or quash both the orders if it is found that setting aside of one illegal order would give rise to another illegality."

7. A Full Bench of this Court has, in case of Jagan Singh v. State Transpor