Once a suit is dismissed, any interim order merges into the final order, rendering applications under Order 39 Rule 2-A non-maintainable.

JUDGMENT :

G.S. Sandhawalia , CJ.

The present Revision Petition is directed by the applicant-petitioner against order dated 01.07.2015, passed by the Additional District Judge (II), Shimla, whereby dated 10.12.2013 passed by the Civil Judge (Junior Division), Court No. 5, was affirmed, Vide order dated 10.12.2013, an application under Order 39, Rule 2- A of the Code of Civil Procedure filed by the applicant-petitioner was dismissed.

2. Order dated 10.12.2013 is stated to be passed in violation of the injunction order dated 05.05.2008. The said order had been challenged firstly before the Additional District Judge (II), Shimla by the applicant- petitioner by filing an appeal, which was dismissed on 01.07.2015 (Annexure P-6), which is subject matter of challenge in this petition, also.

3. Initially, the Revision Petition was directed to be heard in due course way back on 23.08.2016.

4. When the matter came up for hearing, it was brought to the notice of this Court that the petitioner- plaintiff's suit has been dismissed and thereafter the First Regular Appeal was also dismissed, but the matter is pending in Regular Second Appeal before this Court.

5. In such circumstances, this Court was of the opinion that the present proceedings would not be maintainable at this stage now, because once the suit itself has been dismissed and as the violation as such sought was of an interim order passed during the pendency of the suit, the said order would be merging in the final order of the dismissal of the suit. Therefore, there would not be any occasion as such to interfere in the order passed by the Courts below dismissing the application passed under Order 39 Rule 2-A CPC.

6. For this, reliance can be placed upon the judgment passed by the Apex Court in Kanwar Singh Saini Vs. High Court of Delhi, (2012) 4 SCC 307.

7. Factual matrix herein is that the petitioner- plaintiff had purchased the land in dispute vide Sale Deed dated 03.06.1996, measuring 390.85 square meteres falling on various Khasra numbers, situated at Annadale, Lower Kaithu, Mauza Kaithu-1, Tehsil and District Shimla. On Khasra No. 811, there existed two private ‘Puja Rooms’, which were also stated to be in possession of the petitioner-plaintiff.

8. On 15.09.2007, the petitioner-plaintiff was successful in getting an order of injunction partly in her favour, as the trial Court restrained the respondents/defendants from making any interference in the land comprised in Khasra Nos. 812, 813, 814, 815, 816, 817 & 818, whereas the application pertaining to Khasra Nos. 809, 810 & 811 was rejected.

9. Aggrieved by order dated 15.09.2007, the defendants-respondents field an appeal bearing C.M.A. No. 30-S/14 of 2007 before the Additional District Judge, Shimla, which was dismissed vide order dated 05.05.2008, whereby the order of the trial Court restraining the defendants-respondents from making any interference in Khasra Nos. 812 to 818 was set aside and the order made in respect of Khasra Nos. 809 to 811 was upheld.

10. In such circumstances, the petitioner-plaintiff filled an application under Order 39 Rule 2-A CPC before Civil Judge (Junior Division), Court No. 5, Shimla, in which two issues i.e. (i) Whether the respondents have intentionally and willfully disobeyed the court order; and (ii) whether the application is not maintainable, were framed.

11. The aforesaid application was disposed of by the Civil Judge (Junior Division) vide order dated 10.12.2013 while coming to the conclusion that it could not be ascertained on which Khasra number the construction was being carried out as the case of the respondents was that only cleaning of the temple was being done and to prevent the temple from damage, tin sheets were being put thereon.

12. The said order, as noticed, was upheld by the Additional District Judge (II), Shimla, in the appeal on 01.07.2015, which is now subject matter of challenge in the present petition.

13. The suit itself having been dismissed, as noticed earlier, the principles