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Madhya Pradesh High Court · body

2001 DIGILAW 355 (MP)

Municipal Council, Bhind v. Kalawati

2001-04-20

N.G.KARAMBELKAR

body2001
Short Note This revision petition under section 115 of the Code of Civil Procedure, 1908 has been filed against the order dated 12.5.2000 passed by second Additional District Judge, Bhind, in Civil Suit No. 21-A/99. This order was passed on an application under Order 26 Rule 9 of the Code of Civil Procedure (I.A. No. 17). It needs to be made clear that by the order dated 12.5.2000, other applications were also disposed, but order under challenge is only in respect of the order to the extent it relates disposal of application under Order 26 Rule 9 CPC. With the consent of the parties, the petition is being finally disposed at admission stage. The grievance urged in this petition is with regard to limited portion of the order which is as follows: "In case it is found from the report of the Commissioner that utility of Gauri Sarovar and its Ghats is being damaged or destroyed by the construction works carried out by Municipal Council, the defendant No. 1 Municipal Council shall be liable and shall further remove the construction on their own costs." It was contended that on an application under Order 26 Rule 9, CPC, a pre-emptory order of this nature could not have been passed. It was urged that the plaintiffs have brought a suit for declaration, prohibitory injunction as well as mandatory injunction and in their' application for grant of temporary injunction, they have again prayed for prohibitory injunction as well as mandatory injunction and the defendant-Municipal council had moved the application for appointment of commissioner to inspect the spot before disposal of plaintiffs' application for grant of temporary injunction. The application was moved so as to bring the real factual position before the Court as regards the conditions of one Khandeshwar Road and Killa Road and matters connected with the traffic situation and also for ascertaining the actual position near the Ghats etc. In this background, before disposing application for temporary injunction it self, such an order could not have been passed which, in effect, decided the petition for grant of temporary injunction and to some extent granted relief which could have ultimately been granted at the time of disposal of suit on merits. In this background, before disposing application for temporary injunction it self, such an order could not have been passed which, in effect, decided the petition for grant of temporary injunction and to some extent granted relief which could have ultimately been granted at the time of disposal of suit on merits. Learned counsel appearing for respondent No. 3 plaintiff challenged the maintainability of the petition on the ground that the order impugned was passed with the consent of the parties as would be clear on a fair reading of the order, and therefore, this could not be challenged in revision. I have gone through the order impugned and also perused the records. On a plain reading of the impugned order, it is noticed that the parties had consented to the extent that the Commissioner be appointed and consented as to on what point the report should be obtained. It, therefore, appears that learned trial Court passed the orders showing that the order is passed with the consent, and after clarifying the terms etc. of the Commission directed that the report of Commissioner should be filed in the Court by 1.7.2000. To me, it appears that the order passed with the consent was embodied above the sentence -'Commissioner's report should be filed by 1.7.2000'. Therefore the contents of the order written thereafter in the nature of pre-emptory order referred to in the beginning, appears to have been passed by the Court on its own accord. Even otherwise, the order of this nature could not have been passed on an application for appointment of Commissioner, who was to report the Court about the actual and exact position at the spot. As we know, objections are invited from the parties after report of the Commissioner is received, and the report is not automatically admissible. In this view of the matter, a relief of the nature that has been granted by the Court in the nature of pre-emptory order, could not have been given at this stage, which relief might have been granted while disposing plaintiffs' application under Order 39 Rules 1 and 2 CPC and at the time of final disposal of the case. The order under challenge is obviously without jurisdiction and patently illegal. In the result, petition is allowed. The order under challenge is obviously without jurisdiction and patently illegal. In the result, petition is allowed. Stay granted on 7.8.2000 by this Court shall continue till disposal of application for grant of temporary injunction moved by plaintiffs in the trial Court. In the facts and circumstances, the parties are directed to bear their own costs. Before parting, a word for the learned trial Court that it would be desirable to expeditiously dispose the application for grant of temporary injunction.