A revision petition against an ex-parte ad-interim stay order is not maintainable if an appeal is available under the relevant legal provisions.

JUDGMENT

1. The instant writ petition has been filed by the petitioner against the order dated 13.01.2021 passed by the Board of Revenue, Rajasthan, Ajmer, in Revision No. 2021/52 (Nalneesh and Others vs. Jitendra Singh and Others). The Board of Revenue by the said order has stayed the operation of the order dated 17.12.2020 passed by the Assistant Collector, Alwar.

2. Learned counsel for the petitioner submits that vide order dated 17.12.2020, the Assistant Collector, Alwar, passed an order in the suit wherein an ex-parte ad interim stay order was granted and the parties were directed to maintain status quo in respect of revenue record as well as the possession of the property in question. The defendants No. 1 and 3 to 10 in spite appearing before the trial Court, filed the aforementioned revision petition before the Board of Revenue, whereas the Board of Revenue does not have jurisdiction to entertain the revision petition against the ex-parte ad-interim stay order passed during the pendency of the suit till the next date fixed for appearance of the other party. Learned counsel further submits that such kind of order can be challenged under Order 39 Rule 3 and 3A CPC by the aggrieved party. The Board of Revenue erroneously passed the impugned order dated 13.01.2021.In support of his submissions, learned counsel has placed reliance in the case of Vidya Devi and Others vs. Chautha and Others, reported in 2016(1) WLN 248.

3. Perused the impugned order passed by the Board of Revenue and the material placed before the Court.

4. The suit is pending before the trial Court and the trial Court passed an ex-parte ad-interim stay order. The application filed by the plaintiff for temporary injunction is pending before the trial Court for final adjudication.

5. In the case of Vidya Devi and Others (supra), the Coordinate Bench of this Court in Para No.5 of the judgment held ad- infra:-

"5. It is well settled that when a provision for an appeal is available, as in the instant case under Section 225 of the 1995 Act to the Revenue Appellate Authority against an order including an interim one passed by the Sub Divisional Officer, a revision petition before the Board would not be maintainable. Reference in this regard can be had to the judgment of the Hon'ble Supreme Court in the case of A. Venkatasubbiah Naidu Vs. S. Challappan and Others, AIR 2000 SC 3032, wherein it has been held that any interim order passed by a Civil Court is appealable in terms of Order 43 Rule 1 CPC. A party aggrieved of an ad-interim injunction can either move the appellate court or approach the same court which has passed the same by way of an application under Order 39 Rule 3A CPC if the order be an ex-parte one. In fact the Board itself in its impugned order has held that the revision petition laid before it against an ad-interim order was not maintainable. It is true that the defendant had also moved an application under Section 10 CPC for the reason that prior to laying of the partition suit by the plaintiff, one of the co-khatedar had earlier also filed a similar suit. In the circumstances the Board could indeed have required the trial court to dispose the said application within a short time but could not have interfered with the ad interim order of status quo passed by the trial court for reason of its lack of jurisdiction in a revision owing to availability of an appeal against the impugned order."

6. In view of above, the impugned order dated 13.01.2021 passed by the Board of Revenue in revision petition No. 2021/52 is set aside and the Board of Revenue is directed to decide the aforementioned revision petition in accordance with law within a period of fifteen days from the date of production of a certified copy of this order.

7. The writ petition stands disposed of accordingly.