Honble JAIN, J. – The defendant-petitioner has filed this revision petition under Sec. 115 C.P.C. against the judgment dated 22.7.1996 passed by the learned Addl. District Judge No. 1 Bhilwara whereby the impugned judgment dated 7.5.1996 passed by, the learned Civil Judge (Senior Division) Shahapura allowing the application filed by the plaintiff-non-petitioner under order 39, Rule 1 and 2 C.P.C. and granting mandatory and permanent injunction in favour of the plaintiff-non-petitioner and against the defendant-petitioner was affirmed. (2). The brief facts relevant to the disposal of this revision petition are that the plaintiff-non-petitioner filed a suit for permanent, mandatory injunction against the defendant-petitioner with the allegations that he is the tenant of the defendant petitioner for the last many years but the defendant-petitioner wants to forcibly evict him from the suit premises. It was further alleged that on 14.3.1996, at about 9.00 a.m., the defendant-petitioner removed the doors of the shop and took away the same. He also damaged the southern wall. (3). Alongwith the suit, the plaintiff-non-petitioner also filed an application under O.39, rr.1 and 2 CPC. That application was allowed by the learned Additional Civil Judge (Senior Division), Shahpura vide his order dated 7.5.1996. The learned Civil Judge while allowing the application under O.39, rr. 1 and 2 CPC ordered that till the decision of the suit, the plaintiff-non-petitioner be not evicted from the disputed shop and a mandatory injunction was also passed against the defendant petitioner not to forcibly evict the plaintiff-non-petitioner from the disputed shop through any agency and to allow the plaintiff-non-petitioner to use and occupy the disputed shop after getting the southern wall constructed and the doors of the shop affixed. (4). On appeal, the learned appellate court also affirmed the above order of the trial court. Since there is a concurrent finding of facts of both the courts below, interference in revisional jurisdiction is not called for. (5). However, the learned counsel for the petitioner has moved an application alongwith an affidavit alleging that on account of unprecedented heavy rains in Shahpura, many houses were damaged and collapsed. In para 7 of the said affidavit, the petitioner has also averred that substantial portion of the wall of the shop in question fell down and stone slabs of the roof were broken and fell down, as a result of the heavy rains.
In para 7 of the said affidavit, the petitioner has also averred that substantial portion of the wall of the shop in question fell down and stone slabs of the roof were broken and fell down, as a result of the heavy rains. On 6.8.1996, the limbel stone of the door of the shop in question was also damaged and fell down. Similarly roof of the shop was also substantially damaged on account of these subsequent events. Thus, since the shop in question was substantially damaged, the execution of the order of the trial court is not possible. (6). The plaintiff-non-petitioner has filed an affidavit in which he denied all, the material allegations. He has submitted that there is no necessity for the plaintiff to evict the suit premises. Taking into consideration the subsequent alleged events, though the confirmation of the truth is not available to this Court, I deem it proper to order that the learned trial Court will appoint a Commissioner to execute the order dated 7.5.1996 passed by it in mandatory form. The learned counsel for the petitioner requested that it may be specified by this Court the work to be executed in pursuance of the order of the learned trial Court. It is, therefore, clarified that pursuance of the order dated 5.7.1996 passed by the learned trial Court, the front door of the disputed shop will be re fixed. The learned counsel for the defendant-petitioner assured this Court that the doors of the shop shall be make available by the petitioner for being installed in the disputed shop. The southern wall will be reconstructed, the height of which will be 5 8 and width 4. It will be constructed from 2 above the floor. It is further ordered that in case the Commissioner feels any difficulty in execution of the above order of the learned trial court and clarified by this Court, he will make a report to the trial court and the trial court will pass the necessary orders according to law, after hearing both the parties. With these directions this revision petition stands disposed of accordingly.