Civil Revision No. 5217 of 2008

(1)

In the High Court of Punjab & Haryana at Chandigarh

Civil Revision No. 5217 of 2008 (O&M)

Date of decision : 27.1.2009

Nepal Singh and others

..... Petitioners

vs

Ashok Kumar and others

..... Respondents

Coram:

Hon'ble Mr. Justice Rajesh Bindal

Present:

Mr. Munish Soni, Advocate, for the petitioners.

Rajesh Bindal J.

Challenge in the present petition is to the order passed by the learned

Lower Appellate Court whereby the appeal filed by respondents/plaintiffs against

the order passed by the trial court in an application filed under Order XXXIX

Rules 1 and 2 CPC, the petitioners/defendants have been restrained from changing

the nature of the suit property.

Briefly, the facts are that the respondents/plaintiffs filed a suit for

possession under Section 6 of the Specific Relief Act claiming that they had been

forcibly dispossessed from the suit land on which they were continuing as gair

marusi tenants. The trial court dismissed the prayer for interim injunction with the

opinion that the suit itself was not maintainable in terms of Section 77 of the

Punjab Tenancy Act. However, the learned Lower Appellate Court taking the other

view on the maintainability of the suit restrained the petitioners only from

changing the nature of the property.

Learned counsel for the petitioners submitted that once the suit was

not maintainable, there is no question of interim injunction in favour of the

respondents/plaintiffs. He further submitted that the discussion made by the

learned Lower Appellate Court on the merits of the controversy regarding the

maintainability of the suit shall affect the final disposal of the suit by the trial

court. However, I do not find any merit in the submissions made. As regards the

maintainability of the suit. It is only tentative opinion formed by the court. The

issue is to be considered at the time of final disposal of the suit, after the evidence

is led by the parties. It is settled law that nothing said in the order passed in an

application under Order XXXIX Rules 1 and 2 CPC shall have any affect on the

final judgment of the court. As far as the interim injunction is concerned, the Court

has merely restrained the petitioners from changing the nature of the suit land. The

Civil Revision No. 5217 of 2008

(2)

claim in the suit filed by the respondents/plaintiffs is for possession claiming

themselves to be gair marusi tenants thereon who had allegedly been forcibly

dispossessed.

Keeping in view the prayer made by the respondents/plaintiffs in the

suit, the interim injunction granted by the learned Lower Appellate Court cannot

be faulted with.

The petition is dismissed.

27.1.2009

( Rajesh Bindal)

vs.

Judge