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Rajasthan High Court · body

1995 DIGILAW 975 (RAJ)

Pooranmal v. Shri Mohd. Yaseen

1995-11-03

R.R.YADAV

body1995
Honble YADAV, J. – The instant revision has been filed against the order dated 6.1.95 passed by learned Additional District Judge, Nimbahera in civil misc. appeal No. 1/95 by means of which he dismissed the appeal and upheld the order of rejection of application for temporary injunction passed by Additional Civil Judge (Sr. Division), Nimbahera in civil misc. case No. 3/94 dated 19.12.1994. (2). Heard the learned counsel for the parties at length and perused the orders impugned passed by both the learned courts below. (3). In the instant case show cause notice was issued on 16.8.95 to ascertain from the opposite parties as to what was the stage of the construction over the disputed land. The opposite parties No. 1 and 2 are represented by Shri Rameshwar Chouhan. He stated before me that the construction over the disputed land has been completed. (4). In view of the aforesaid facts and circumstances no useful purpose would be served to interfere with the orders passed by both the learned courts below. However, it is made clear that in such a situation where nature of land in dispute is about to be changed due to which there is likelihood of damage or injury to the subject matter of the suit or any other comparative inconvenience or hardship to the parties the subordinate civil courts are expected to have a glance at the mandatory provisions contemplated under O. 39 r. 7 CPC. In such a situation ordinarily where defendant threatened to change the nature of land causing injury or damage to the subject matter of the suit or any other comparative inconvenience or hardship to the parties it is obligatory on the part of the civil court to direct the parties to maintain status quo till the clouds of rights and liabilities of the parties are finally decided in the suit on merits. (5). For effective decision of the instant revision the mandatory provisions co- ntemplated under O. 39 r. 7 CPC are reproduced below :– "O. 39 r. 7. Detention, preservation, inspection, etc. (5). For effective decision of the instant revision the mandatory provisions co- ntemplated under O. 39 r. 7 CPC are reproduced below :– "O. 39 r. 7. Detention, preservation, inspection, etc. of subject matter of suit-(1) the court may, on the application of any party to a suit, and on such terms as it thinks fit :- (a) make an order for the detention, preservation or inspection of any property which is the subject matter of such suit, or as to which any question may arise therein; (b) for all or any of the purposes aforesaid authorize any person to enter upon or into any land or building in the possession of any other party to such suit; and (c) for all or any of the purposes aforesaid authorize any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purposes of obtaining full information or evidence. (2) The provisions as to execution of process shall apply, mutatis mu- tandis, to persons authorized to enter under this rule." (6). A similar question came up for consideration before me in the case of UIT, Jodhpur vs. Smt. Sohni Devi another (S.B. Civil Revision No. 765/94, decided on 28.7.95 (1) and it was ruled as follows :– "It is well to remember that the main object of temporary injunction is to preserve the subject matter of suit in status- quo till the decision of suit whenever and wherever it is found by a civil court that there is threatened damage or injury likely to be caused to the subject matter of the suit. Thus, even if a case was not found to be covered by the learned trial court under O. 39 r. 1 and 2 CPC yet it ought to have passed an order under O. 39 r. 7 CPC for preservation of the disputed construction till decision of the suit on merits." (7). It is pertinent to note that apart from O. 39 r. 7 CPC every civil court has inherent jurisdiction u/S. 151 CPC to pass suitable injunction order. It is true that the civil court would exercise its residuary power u/S. 151 CPC if the case under consideration is found to be outside the scope of O. 39 r. 1 and 2 CPC as well as under O. 39 r. 7 CPC. (8). It is true that the civil court would exercise its residuary power u/S. 151 CPC if the case under consideration is found to be outside the scope of O. 39 r. 1 and 2 CPC as well as under O. 39 r. 7 CPC. (8). In the present case both the learned courts below have refused temporary injunction to the revisionists against the sound principle of law and allowed the opposite parties to raise construction yet the act done by the opposite parties cannot be undone in exercise of revisional power u/S. 115 CPC. The relief which the revisionists are seeking in the instant revision is not possible to grant under amended Sec. 115 CPC. However, it is made clear that whatever observations have been made by both the courts below in the impugned judgments will not come in the way while deciding the controversy between the parties on merits. (9). I am satisfied after hearing the learned counsel for the parties that since the dispute relates about Abadi, therefore, there would always remain a serious apprehension of breach of peace between the parties hence it would be expedient to direct the learned trial court to decide the suit on merits expeditiously preferably within a period of six months from today. (10). Both the learned counsel for the parties are directed to inform their clients to appear before the trial court on 17.11.1995 and on the aforesaid date the learned trial court would fix a specific date for further progress of the suit. The trial court is directed to proceed with the suit as contemplated under proviso (a) of rule 2 of order 17 CPC according to which when the hearing of the suit has commenced it shall be continued from day to day until all the witnesses in attendance have been examined, unless the courts finds that for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary. (11). Both the learned counsel for the parties before me gave undertaking not to seek unnecessary adjournment before the trial court. If such adjournment is made by either of the parties before the learned trial court, it would be allowed only if the exceptional circumstances are shown beyond the control of the parties, not otherwise. (11). Both the learned counsel for the parties before me gave undertaking not to seek unnecessary adjournment before the trial court. If such adjournment is made by either of the parties before the learned trial court, it would be allowed only if the exceptional circumstances are shown beyond the control of the parties, not otherwise. As a result of the aforementioned discussion, the instant revision is finally disposed-of at admission stage with a direction to the learned trial court to decide the suit it self expeditiously, preferably within a period of six months from today. Costs easy.