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2011 Supreme(UK) 413

2012 (1) UAD 115
UTTARAKHAND HIGH COURT
Hon'ble Mr. Justice B.S. Verma
Writ Petition (M/S) No. 1148 of 2007
SHASHI BHUSHAN & TWO ORS. – Petitioners
Versus
PRADEEP KUMAR & TWO ORS. – Respondents
Decided on : 29.07.2011

Advocates:
For the Petitioners:Mr. Siddhartha Singh, Advocate
For the Respondents No. 1 & 2:Mr. S.K. Jain, Advocate

Headnote:(A) Code of Civil Procedure, 1908, Sec. 115 and Order 39 Rules 1 & 2 — Revision under — Maintainablilty of — Revision against an order to issue notice to the defendant on an application for grant of termporary injunction, filed under — Is not maintainable. (Para 13)

       (B) Code of Civil Procedure, 1908, Sec. 115 and Order 39 Rules 1 & 2—Held — That if the revision is not admitted for hearing, the revisional court has no jurisdiction to pass an interim order — Therefore, Impugned order, accordingly quashed. (Paras 11, 12 and 15)

        ¼v½ nhokuh izfØ;k lafgrk] 1908] /kkjk 115 vkSj vkns'k 39] fu;e 1 vkSj 2 & ds vUrxZr nk;j dh xbZ fuxjkuh ;kfpdk dh iks"k.kh;rk dk iz'u & izfroknh dks uksfVl fuxZr fd;s tkus ds vkns'k ds fo#) fuxjkuh nk;j fd;k tkuk] tks fd vLFkkbZ LFkxu vkns'k ds Lohdkj fd;s tkus ds izkFkZuk i= ds vk/kkj ij Fkk & iks"k.kh; ugha gSA

        ¼izLrj 13½

       ¼c½ nhokuh izfØ;k lafgrk] 1908] /kkjk 115 vkSj vkns'k 39] fu;e 1 vkSj 2 & fu.kZ; esa dgk x;k & ;fn fuxjkuh lquokbZ ds okLrs Lohdkj ugha dh tkrh gS rks fuxjkuh U;k;ky; dks varfje vkns'k ikfjr djus dk vf/kdkj ugha gS & blfy, iz'uxr vkns'k fujLr fd;k x;kA ¼izLrj 11] 12 vkSj 15½

JUDGMENT

Heard learned counsel for the parties and perused the record.

2. Respondent Nos. 4 to 9 are proforma respondents.

3. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 14.3.2007 passed by the Incharge District Judge, Dehradun in Civil Revision No. 39 of 2007, Pradeep Kumar and others Vs. Shashi Bhushan and others (Annexure No. 1 to the writ petition).

4. Briefly stated, the facts giving rise to the present writ petition are that the petitioner-plaintiffs filed Original Suit No. 937 of 2006 against the defendants-respondents no. 1, 2 and 4 to 9 in the Court of Civil Judge (Junior Division) Dehradun for a decree of permanent injunction restraining the defendants from interfering in the possession of the plaintiffs over the property described in Schedule 'Ka' and 'Kha' of the plaint. Along with the suit, an application under Order 39, Rules 1 and 2 C.P.C. (paper no. 6-C2) was also moved by the plaintiff-petitioners.

5. It appears that the trial court after hearing the petitioners passed an ex parte temporary injunction order in favour of the plaintiff thereby restrained the defendant-respondents from interfering in the property in question by order dated 30.11.2006 and issued notices to the defendants to file objection under Order 39, Rule 4 C.P.C., fixing 9.12.2006 for disposal. It also appears that the defendant-respondent preferred counter claim in their written statement and also filed an application (paper no. 46-C) with a prayer of temporary injunction against the plaintiffs. The trial court passed an order that the application be put up on the date fixed. Aggrieved by that order, the defendant no. 1 and 3-respondent nos. 1 and 2 herein preferred Civil Revision No. 39 of 2007 before the District Judge, Dehradun. The revisional court heard the learned counsel for the revisionist-respondents and has observed in its order that the revision is not maintainable against the order impugned 30.11.2006, but in the impugned order the revisional court itself, while directing the trial court to dispose of the applications 6-C and 46-C without further delay, has observed that in continuation of order dated 30.11.2006 passed on application No. 6-C moved by the plaintiff-petitioners, the plaintiffs are also restrained not to create any interference and raise construction or create any obstruction on the disputed land. Undisputedly, this order has been passed by the revisional court against the plaintiff-petitioners without hearing them, in whose favour ex parte injunction order dated 30.11.2006 had been passed by the trial court, after holding that a prima facie case to grant ex parte injunction order is made out in favour of the plaintiff. On the one hand, the revisional court itself found that there is no need to admit the revision for hearing, but on the other hand, it has passed an order against the plaintiff-petitioners in continuation of the order dated 30.11.2006 whereby ex parte injunction was granted in favour of the plaintiffs and notices were issued to the defendants on the application for grant of temporary injunction filed under Order XXXIX, Rules 1 and 2 C.P.C..

6. Counter affidavit has been filed on behalf of the respondent nos. 1 and 2. Along with the counter affidavit, the respondents have annexed copy of the counter claim preferred along with the written statement, copy of objection filed against the application paper no. 6-C and application 46-C, filed by the respondent nos. 1 and 2 as Annexure CA-1, CA-2 and CA-3 to the counter affidavit.

7. I have perused the material placed before this Court including memo of writ petition and the counter affidavit along with its annexures and the impugned order passed by the revisional Court.

8. Learned counsel for the petitioners has contended that the impugned order dated 14.3.2007 passed by the revisional court is without jurisdiction in to-to, as the revision was not maintainable against















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