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Allahabad High Court · body

2012 DIGILAW 634 (ALL)

Mohd. Asad Abbas and Others v. Devi Lal and Another

2012-03-15

ABHINAVA UPADHYA

body2012
Abhinava Upadhya, J.;- By means of this writ petition the petitioners have challenged the order of the trial court and the revisional court by which order dated 12.5.2010 was modified. The claim of the petitioners is that they were defendants in a suit filed for permanent injunction being Suit No. 406 of 2010 against the petitioners. In the said suit interim injunction application was also filed and vide order dated 12.5.2010 the defendants-petitioners were restrained from interfering in the possession of the plaintiffs. It is submitted that the plaintiffs were digging up the earth from the land in possession of the petitioners and, therefore, the court below exercising jurisdiction under Section 151 CPC suo moto passed an order restraining the plaintiffs from interfering in the possession of the petitioners-defendants vide order dated 27.5.2011 against which revision was filed by the plaintiffs and the revisional court set aside the order dated 27.5.2011. In the said revision objection was raised by the petitioners-defendants that as the order challenged is an interlocutory order and does not decide the case, therefore, the revision is not maintainable. It was further submitted that against the order passed under Section 151 CPC, appeal would lie under Order XXXXIII Rule 1(R) CPC. The revisional court, however, rejected the aforesaid objection and allowed the appeal holding that vide order dated 27.5.2011 the trial court has restrained the plaintiffs itself, who had filed the suit against the defendants from interfering in their possession. Such an order could not have been passed. The revisional court further held if the order dated 27.5.2011 if allowed to stand, it would occasion a failure of justice and cause irreparable injury to the party, against whom, it is made. Therefore, finality can be attached to such an order and, therefore, revision was maintainable. The revisional court also held that the original order dated 12.5.2010 was amended after one year and the order itself is now operating against the plaintiffs who had come to the Court for restraining the defendants from encroaching upon their land. The revisional court also held that there was no material before the court below which could indicate how the situation has altered from the date of passing of the original order dated 12.5.2010 and allowed the revision. I have considered the submissions made by the learned counsel for the petitioners and have gone through the orders of the court below. The revisional court also held that there was no material before the court below which could indicate how the situation has altered from the date of passing of the original order dated 12.5.2010 and allowed the revision. I have considered the submissions made by the learned counsel for the petitioners and have gone through the orders of the court below. In my view, there is no error in the order of the revisional court. Apparently, there was no material before the appellate court to alter the earlier order passed by it by a subsequent order. The affect is that the order of restrain against the defendants will now operate against the plaintiffs itself which is unwarranted and, therefore, there is no error in the order. Further the claim of the learned counsel for the petitioners is that a survey commission was directed by the trial court with regard to the wall on the north side and the plaintiffs were directed to take steps for such survey but no steps have been taken for such survey. Under these circumstances, it would be appropriate to direct the trial court to get a survey as earlier directed with respect to north wall of the property in question. In terms of the above order, the writ petition is finally disposed of.