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2001 DIGILAW 1698 (RAJ)

Bhanwara Ram v. Shiv Ram

2001-10-12

H.S.PUNIA

body2001
PUNIA, Mem.–The petitioner-plaintiffs have filed this revision petition u/Sec.230 of the Rajasthan Tenancy Act, 1955 (in short, ``the Act) against the judgment of the learned Settlement Officer-cum-Revenue Appellate Authority, Nagaur (in short, ``the S.O.-cum-R.A.A.), by which the appeal preferred by the non-petitioner No.1 to 4 was accepted and the order of the learned trial Court dated 12.7.90 was set aside. (2). The facts, briefly stated, are that the petitioners filed a suit before the learned ADM, Parbatsar alongwith an application for temporary injunction u/Sec.212 of the Act. The learned trial Court issued ex-parte ad-interim injunction against the non-petitioners to the effect that the non-petitioners will not interfere in possession and cultivation of the land in dispute bearing khasra No.398 area 48 bighas 3 biswas. Thereafter the petitioners moved an application u/Sec.151 CPC for providing police help for compliance of the ad interim injunction and the learned trial Court after hearing both the parties passed the order on 12.7.90, accepting the application of petitioners and directed for police assistance for implementation of the ad interim injunction order. Aggrieved by this order, the non- petitioners filed an appeal u/Sec.225 of the Act before the learned S.O.-cum-R.A.A. Nagaur. The appeal preferred by the non- petitioners was accepted by the impugned judgment holding that ad interim injunction order dated 5.10.89 was passed without affording an opportunity of hearing to the opposite party, therefore, providing police assistance for implementation of the ad interim injunction order the learned trial Court should have heard both the parties on ex parte interim order and the case was remanded back to the trial Court and directed that after hearing both the parties the case be decided afresh. (3). The learned counsel for the petitioners has vehemently argued that the order dated 12.7.90 passed by the learned trial Court was an order u/Sec.151 CPC and no appeal lies against such an order, therefore, the appeal preferred before the learned S.O. cum-R.A.A. was not maintainable, therefore, the learned S.O.-cum- R.A.A. has exercised jurisdiction not vested in him and thereby committed illegality and material irregularity in deciding the appeal on merits. The non-petitioners could have filed revision petition against the impugned order. In support of his argument the case of Jesaram vs. Shiv Shanker Housing Cooperative Society (1) has been cited. (4). The non-petitioners could have filed revision petition against the impugned order. In support of his argument the case of Jesaram vs. Shiv Shanker Housing Cooperative Society (1) has been cited. (4). The learned counsel for the non-petitioners has contended that the impugned order dated 12.7.90 was passed in continuation of earlier order dated 5.10.89, therefore, the impugned order was an order u/Sec.212 of the Act and appeal u/Sec.225 of the Act lies before the learned S.O.-cum-R.A.A. Mere mentioning Section 151 CPC on application cannot oust the jurisdiction of the appellate Court. If there was violation of the ad interim injunction order, the petitioners could have filed an application under Order 39 Rule 2A of CPC but no such application was filed. Hence, under these circumstances of the case, appeal preferred by the non-petitioners was maintainable and the learned S.O.-cum- R.A.A. committed no illegality in deciding appeal on merits. (5). I have considered the arguments advanced on behalf of both the parties and perused the impugned order as well as record of the learned trial Court. (6). It is not disputed that the petitioners filed an application for temporary injunction u/Sec.212 of the Act before the trial Court and an ex-parte ad interim injunction order was issued by the trial Court on 5.10.89. The non-petitioners appeared before the trial Court and the case was fixed for reply of the non- petitioners. Meanwhile, the petitioners moved an application u/Sec.151 CPC on 3.7.90 that the non-petitioners are not complying with the interim injunction order and sought the police assistance for implementation of the interim order. The non- petitioners submitted their reply to the said application and after hearing both the parties the learned trial Court passed the order on 12.7.90 and directed for police assistance to get ad interim injunction order implemented. Now, it is to be seen whether the impugned order passed by the learned trial Court is an order u/Sec.151 CPC or can it be treated as an order u/Sec.212 of the Act. In Jesarams case ex-parte injunction was issued against the opposite party and the petitioners moved an application u/Sec.151 CPC for police help alleging that the compliance of the ex-parte order is not being made, which was accepted by the trial Court. In Jesarams case ex-parte injunction was issued against the opposite party and the petitioners moved an application u/Sec.151 CPC for police help alleging that the compliance of the ex-parte order is not being made, which was accepted by the trial Court. The defendants challenged the order for police help by way of revision petition before the Board of Revenue, which was dismissed on the ground that the lower court had jurisdiction to maintain confidence regarding the orders passed by the Court and there was no error of jurisdiction in providing police help for compliance of the Court order. The learned Member who decided the Jesarams case also considered Kutubuddin vs. Habib Khan (2) and Jaishi & Ors. vs. Saligram (3) wherein it has been held that the Court has ample jurisdiction u/Sec.151 CPC to give direction to the Police Authorities to render police help to the aggrieved party with regard to the implementation of the orders of injunction passed by the Court or the exercise of the rights created under the orders of injunction passed by the Court. In Jaishis case it was further observed that Order 39 Rule 2(3) CPC provides only for punishment by attachment of the property or by detention in civil prison of the person, who committed breach. But it does not further provide for implementation of the order of injunction itself. In such a case there being no other express provision under the Code of Civil Procedure for enforcement of the order, it is not only proper, but also necessary that courts should render all aid to the aggrieved party to derive full benefits of the order. (7). In view of the above discussions, I am of the view that the impugned order dated 12.7.90 passed by the learned trial Court will be deemed to have been passed by the court in exercise of powers u/Sec.151 CPC and it cannot be termed as an order u/Sec.212 of the Act or u/Sec.104 CPC. Arguments advanced by the learned counsel for the non-petitioners that the impugned order dated 12.7.90 was passed in continuation of earlier order dated 5.10.89 u/Sec.212 of the Act is not tenable in the facts and circumstances of the case and the impugned, order will be deemed to have been passed u/Sec.151 of CPC. Arguments advanced by the learned counsel for the non-petitioners that the impugned order dated 12.7.90 was passed in continuation of earlier order dated 5.10.89 u/Sec.212 of the Act is not tenable in the facts and circumstances of the case and the impugned, order will be deemed to have been passed u/Sec.151 of CPC. Therefore, the contention of the learned counsel for the petitioners carries weight and the learned S.O.-cum-R.A.A. committed material irregularity and illegality in entertaining appeal against the impugned order and thereby exercised jurisdiction not vested in him. Therefore, the judgment and the order of the S.O.-cum-R.A.A. cannot be upheld and deserves to be set aside. (8). Consequently, this revision petition is accepted and the impugned judgment dated 17.10.95 passed by the learned S.O.-cum- R.A.A., Nagaur is quashed. Pronounced in the open Court.