The main legal point established was the independence and enforceability of interim orders under Order 39 Rule 2-A CPC, irrespective of the outcome of the main suit or appeal.

Chander Bhusan Barowalia, J.

The present petition is maintained by the petitioner-plaintiff (hereinafter referred to as ‘the petitioner’) against the order of learned Additional District Judge, Fast Track Court, Kangra at Dharamshala, H.P. passed in CMA No. 15-G/2005/2004, dated 30.11.2006, whereby the order of learned Civil Judge (Junior Division), Court No. 2, Dehra, District Kangra, H.P., passed in application under Order 39, Rule 2-A CPC, with respect to removal of iron stairs by the respondent, was set aside.

2. Briefly stating the facts giving rise to the present petition are that the petitioner instituted a suit against the defendant (hereinafter referred to as ‘the respondent’) seeking permanent prohibitory injunction, wherein it was averred that defendant has raised construction by encroaching upon a common passage used for ingress and egress. The petitioner had also sought alternative relief of mandatory injunction, in case the defendant succeeds in raising the construction. The suit was filed alongwith application under Section 39, Rule 2-A CPC for interim stay order, wherein the learned Trial Court, vide order dated 30.09.2004, directed the respondents to remove the iron stairs with immediate effect and file an undertaking in the Court within 24 hours to the effect that he has removed the said iron stairs and further that he would not cause any hindrance on the disputed path till the disposal of the main suit. Despite the orders of the learned Trial Court, the defendant continued with the construction. The Local Commissioner also visited the spot and submitted the report. On the assurance of the parties, the learned Trial Court, vide order dated 30.12.1999, directed the parties to maintain status quo qua nature of the suit land and path. However, the defendant in the month of November, 2002, erected the iron stairs, blocking the path of the petitioner and also in utter disregard to the order of the learned Trial Court.

3. The respondent, by filing reply to the application, admitted that status quo order had been passed by the learned Trial Court. It is also averred that report of Shri V.S. Gill, Advocate, was improper. The defendant was not present in the village during third week of November, 2002, and his family members by supplanting old bamboo stairs, which got damaged, tethered iron stairs. The defendant has further averred that the stairs were not supplanted over the path (deodi) and the existence of deodi was to be decided in the civil suit. The defendant prayed for dismissal of the application.

4. Anchoring upon the pleadings of the parties, the learned Trial Court, vide order dated 01.07.2004, framed the following points for determination:

“1. Whether the respondent has disobeyed the order dated 30.12.1999, passed by this Court in CMA No. 32/99/98, titled as Jagdish Ram vs. Ved Parkash?

2. Final order.”

5. The learned Trial Court directed the respondent to remove the iron stair case immediately and to file an undertaking in the Court within 24 hours to the effect that he has removed the said iron stairs. Thereafter, the learned First Appellate Court allowed the appeal and set-aside the order of the learned Trial Court. The learned senior counsel for the petitioner has argued that the learned First Appellate Court has committed illegality in allowing the appeal, as the proceedings under Order 39, Rule 2-A CPC are separate proceedings and has nothing to do with the Civil Suit. He has further argued that now the suit has been decreed and in view of this, the findings arrived at by the learned First Appellate Court, presuming that the suit is dismissed, are required to be reconsidered. On the other hand, the learned senior counsel for the respondent has argued that the present petition is not maintainable under Article 227 of the Constitution of India as the remedy is to file a revision petition and he has further argued that the findings given by the learned First Appellate Court are as per law. In rebutta