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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
Arun Bhansali, J.
Jagjeet Singh & Ors. – Appellant
Versus
The State of Rajasthan & Ors. – Respondent
S.B. Civil Writ Petition No. 6789/2022
Decided On : 14-12-2022
Rajasthan Tenancy Act, 1955 - Temporary Injunction - Section 212 - The court discussed the application of Section 212 of the Act, 1955 and the maintainability of an independent application under Section 151 CPC. The court held that the application under Section 151 CPC, which led to the ex parte injunction, was not filed in the pending suit and was not maintainable. The court quashed the orders passed by the SDO and the Board of Revenue and dismissed the application under Section 151 CPC.
Fact of the Case:
The petitioners filed a writ petition against the orders passed by the SDO and the Board of Revenue granting ad interim injunction and rejecting the revision petition. The respondents had filed an independent application under Section 151 CPC seeking permanent injunction, which led to an ex parte injunction.
Finding of the Court:
The court found that the application under Section 151 CPC was not filed in the pending suit and was not maintainable. The court quashed the orders passed by the SDO and the Board of Revenue and dismissed the application under Section 151 CPC.
Issues: The issues involved the maintainability of the application under Section 151 CPC and the validity of the orders passed by the SDO and the Board of Revenue.
Ratio Decidendi: The court held that the application under Section 151 CPC, which led to the ex parte injunction, was not filed in the pending suit and was not maintainable. The court quashed the orders passed by the SDO and the Board of Revenue and dismissed the application under Section 151 CPC.
Final Decision: The writ petition filed by the petitioners was allowed, and the orders passed by the SDO and the Board of Revenue were quashed and set aside. The application filed by the respondent Baldev Singh under Section 151 CPC was dismissed as not maintainable.
ORDER
1. This writ petition has been filed by the petitioners aggrieved against the order dated 27/4/2022 (Annex.P/8) passed by the Board of Revenue and order dated 26/10/2021 (Annex.P/6) passed by the SDO cum Assistant Collector, Hanumangarh, whereby, ad interim injunction has been granted by the SDO and the revision petition filed by the petitioners has been rejected by the Board of Revenue.
2. One Major Singh and Kour Singh s/o Banta Singh filed a suit for partition and perpetual injunction before S.D.O., Hanumangarh inter alia against Baldev Singh & Others. Along with the said suit, an application under Section 212 of the Rajasthan Tenancy Act, 1955 (’the Act, 1955’) seeking temporary injunction was also filed.
3. Written statement was filed by defendants Baldev Singh and Sohan Singh s/o Baldev Singh along with a counter claim.
4. S.D.O. vide its order dated 2/9/2021 (Annex.3) decided the application under Section 212 of the Act, 1955 and ordered for demolition of the house, for opening of the way and restrained the parties from interfering in the use of way till the pendency of the suit.
5. On 25/10/2021 an application was filed by respondent Baldev Singh purportedly under Section 151 CPC against the respondents herein seeking permanent injunction against the respondents from interfering in the way.
6. The S.D.O. by its order dated 26/10/2021, while ordering for issuance of notice to the respondents, granted ex parte injunction.
7. Feeling aggrieved, the petitioners filed revision petition before the Board of Revenue. The Board of Revenue by its order dated 27/4/2022 came to the conclusion that the order passed by the S.D.O. did not call for any interference and consequently rejected the revision petition. Feeling aggrieved, present petition has been filed.
8. It is submitted by learned counsel for the petitioners that passing of the order dated 26/10/2021 by the SDO was ex facie illegal inasmuch as once the suit pertaining to the land in question was already pending consideration and the application under Section 212 of the Act, 1955 had already been decided on 2/9/2021, there was no occasion for the respondents to file an application under Section 151 CPC, which was not dealt with in the suit and has been independently registered, on which ex parte injunction has been granted.
9. Submissions have been made that filing of the proceeding under Section 151 CPC independent of the pending suit was not maintainable and passing of the order by the SDO was without jurisdiction.
10. Submissions have been made that entire attempt on the part of the respondents has been to seek an order at the back of the petitioners, who are already appearing in the suit and, therefore, devise of moving an independent application under Section 151 CPC was employed, which action is wholly illegal and the Board of Revenue by rejecting the revision petition has perpetuated the said illegality and, therefore, the orders impugned deserve to be set aside.
11. Learned counsel appearing for the respondents attempt to make submissions that looking to the urgency involved in the matter, the application was filed by the respondents on which ex parte interim injunction was granted and, therefore, the Board of Revenue was justified in rejecting the revision petition.
12. Submissions have been made that the petitioners can very well appear before the SDO and make submissions as the order passed is not final and no case for interference is made out in the present writ petition.
13. By order dated 12/10/2022, a coordinate Bench of this Court while fixing the matter on 1/11/2022 ordered that counsel for the respondent will explain that in which pending suit before the learned SDO, Hanumangarh proceedings under Section 151 CPC have been initiated by Baldev Singh.
14. Today, learned counsel for the respondents fairly indicated that the application has been filed independent of the pending suit as it cannot be deciphered from the record as to whether the same was filed in pending
AI
The main legal point established in the judgment is the requirement for an application under Section 151 CPC to be filed in the pending suit and its maintainability. The court emphasized that such ap....
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Order 7 Rule 11 provides for rejection of a suit at threshold if same does not disclose any cause of action or if same is specifically barred by any law.
An order passed on an application under Order IX Rule 5 CPC is not an appealable order under Section 223 of the Rajasthan Tenancy Act, 1955 but can be challenged by filing a revision petition under S....
The applicability of Section 10 of the CPC is determined by the identity of issues in the suits, not the nature of relief sought.
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