1999 Supreme(MP) 1021

IN THE HIGH COURT OF MADHYA PRADESH
S.C. Pandey, J.
Rajendra Prasad - Appellant
Vs.
Om Prakash - Respondent
Civil Revn. No. 1937 of 1999(J)
Decided On : 06-12-1999

Headnote:(1) Civil Procedure Code, 1908 – O. 39 R. 1 and 2 – O. 41 R. 5 – injunction order is passed against a party – stay order relates and passed against a Court.

       (2) Civil Procedure Code, 1908 – O. 39 R. 1 and 2 and S. 151 – injunction granted by trial Court but vacated by appellate Court – defendant filing application alleging locking of premises during injunction order – enquiry should be made – Court has power of restitution u/s 151.

        Short Note

       1. This revision under section 115 of the Code of Civil Procedure is directed against the order dated 20.7.99 passed in Civil Suit No. 14 – A/94 by Civil Judge, Class I, Baloda Bazar, District Raipur.

       2. The applicants – defendants filed an application under section 151 of the Code of Civil Procedure, whereby they claimed that the non – applicant – plaintiff had taken advantage of the order of temporary injunction granted by the trial Court. The non – applicant – plaintiff had put a lock – on the door of the suit plot which was found to be in possession of the applicants – defendants by the lower appellate Court. It was contended that the lower appellate Court has reversed the order of temporary injunction passed by the trial Court on the ground that possession was that of the applicants – defendants. A revision against that order too was dismissed by this Court. That revision was registered as Civil Revision No. 379/95 decided on 4.9.1997. The applicants claimed that the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, filed by the non – applicant – plaintiff, was dismissed on the ground that he 'was not in possession and the fact that the non – applicant had taken advantage of the order passed by the trial Court to put a lock on the door of the suit plot. The trial Court may issue a direction to the non – applicant to remove his lock from the door of the suit plot. It was claimed that this kind of restitution can be granted by applying section 151 of the Code of Civil Procedure. The trial Court has rejected this application mainly on the ground that the applicants are the defendants in the suit. They can defend the suit but no positive order could be passed against the plaintiff by dispossessing him in exercise of power under section 151 of the Code on Civil Procedure. The Court below has not examined the merits of the case.

       3. In the opinion of this Court, the injunction order issued in favour of a party as well stay order issued in favour of a party are comparable in their design and effect and stay order has been said to be prohibitory order to Courts; whereas an order of temporary injunction is a prohibitory order against a party. Therefore, it is necessary to visualise what happened when the non – applicant – plaintiff obtained an order of temporary injunction against the applicants – defendants – at the time when the trial Court passed an order. The applicants could not enter the suit premises without violating the order of the Court as they were restrained from entering the suit premises by the order of the trial Court. It is not improbable that taking advantage of this situation, the non – applicant – plaintiff in order to assert his right to suit property put a lock on the door of the suit plot. Under these circumstances, the trial Court should have held that an application for restitution under section 151 of the Code of Civil Procedure lay. It should have decided the case in accordance with law by determining if the non – applicant dispossessed the applicants under the order of grant of temporary injunction passed by the trial Court. Accordingly, the case is remitted back to the trial Court for decision in accordance with law. The impugned order dated 20.7.1999 is hereby set aside.

       4. Accordingly, the revision is allowed. No costs.