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Madhya Pradesh High Court · body

2006 DIGILAW 1023 (MP)

Khakan Mohd. Khan v. Sikander Khan

2006-08-28

S.K.SETH

body2006
ORDER 1. This civil revision by the defendant is directed against the order dated 13.4.2006 passed by 4th Additional District Judge, Ratlam, allowing the Miscellaneous Appeal under Order 43 Rule 1 (r), CPC. 2. Non-applicants No.1 and 2 had instituted a civil suit against the present applicant' along with an application for temporary injunction against encroachment on the road particularly shown in the suit map. Trial Court granted the temporary injunction which was confirmed by lower appellate Court vide order dated 21.8.1991. Plaintiffs filed an application under Order 39 Rule 2A for taking action against appellant for breach of the injunction order. Trial Court by order dated 24.12.2005 rejected the application. Said order was challenged by non-applicants in Misc. Appeal before the Court below. By the order impugned, Court below allowed the appeal and directed attachment and auction of appellant's house and ordered appellant to undergo three months' civil imprisonment. Hence this revision. 3. Learned counsel for non-applicants raised preliminary objection with regard to maintainability. According to him after recent amendments in the Code of Civil Procedure, present revision is not maintainable. In support his contention he placed reliance on a Devision Bench decision of this Court reported in 2003 (II) JLJ 360 [Surajmal v. Sunderlal]. Per contra, learned counsel appearing for applicant strenuously opposed the preliminary objection and submitted that against the impugned order revision is maintainable because it is not interlocutory in nature. Alternatively his submission was to convert this revision into writ petition under Article 227 of the Constitution. 4. After having heard learned counsel for parties, this Court is of the view that the preliminary objection raised by non-applicants-plaintiffs must be sustained in the light of law laid by the Devision Bench in Surajmal (supra). 5. In Surajmal (supra), Division Bench examined section 115 vis-s-vis an order passed in appeal under Order 43 (1) (r) of the CPC against order of temporary injunction. Division Bench was constituted to resolve conflict between contrary set of views of Single Bench on the point of tenability of revision under section 115 of the CPC against an appellate order. 5. In Surajmal (supra), Division Bench examined section 115 vis-s-vis an order passed in appeal under Order 43 (1) (r) of the CPC against order of temporary injunction. Division Bench was constituted to resolve conflict between contrary set of views of Single Bench on the point of tenability of revision under section 115 of the CPC against an appellate order. The Bench after elaborate discussion, held that rigour of the bar contained in proviso of section 115 of the Code would be attracted against an appellate order passed under Order 43 (1) (r) which provides for a appeal against an order passed by the trial Court under Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 of Order XXXIX of the CPC. It has held despite disposal of appeal under Order 43, the suit survives and interlocutory or provisional character of the order passed in the suit remain unchanged. 6. No contrary view was bought to notice during the course of hearing diluting the authority of Division Bench's decision supra. In view of this, the preliminary objection is well founded and must be sustained as indicated herein above and it must be held present revision under section 115 of the CPC against the impugned order is not maintainable. Having reached said conclusion, inevitable result is the dismissal of this revision but for the fact that the consequences of the order impugned would immediately ensue, therefore, in the interests of justice, I deem it proper to accept the alternative submission of learned counsel for applicant and allow conversion of this revision into a writ petition under Article 227 of the Constitution of India. Counsel shall take necessary steps within three days from the date of this order, thereupon it would be registered as a writ petition under Article 227 of the Constitution and within a week thereafter, office shall list the matter before the appropriate Bench as per the roster for necessary orders as until then, the interim order dated 19.4.2006 shall remain in force. As and when the matter is listed before the appropriate Bench, office shall also reflect names of counsel appearing for parties in the cause list. Order accordingly.