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2015 DIGILAW 4068 (ALL)

Naseer Khan v. Riyaz Khan

2015-12-18

MAHENDRA DAYAL

body2015
JUDGMENT Mahendra Dayal, J. – The instant civil revision under Section 115 of the Code of Civil Procedure has been filed against the judgment and order dated 12.03.2015 passed by the learned District Judge, Shravasti in Misc. Appeal No.8 of 2015, whereby the learned District Judge has allowed the appeal and has directed the parties to maintain status quo in respect of the property in question till final disposal of the suit. 2. The facts in brief are that the opposite parties No.1 and 2 filed a suit for permanent injunction against the revisionists in which an application for interim injunction was also moved under Order 39 Rules 1 and 2 CPC. By the order dated 06.03.2014, the learned Civil Judge passed an order for issuance of notice to the revisionists and invited objections from them. Simultaneously an order was also passed directing the parties to maintain status quo in respect of the property in question which was shown with the letters A, B, C, D in the site plan annexed with the plaint. In pursuance of the notice issued to the revisionists, they appeared before the court below and filed their objections. The learned Civil Judge by the order dated 13.01.2015 dismissed the application for interim injunction on the ground that the opposite parties No.1 and 2 have failed to establish that they were owners in possession of the property in question. 3. Feeling aggrieved by the aforesaid order, the opposite parties No.1 and 2 preferred an appeal before the learned District Judge Shravasti, who after hearing the parties and on perusal of the record allowed the appeal and directed the parties to maintain status quo. It was also provided that without permission of the Court none of the parties shall raise any permanent structure. With regard to the trees standing on the disputed land, it was also provided that none of the parties shall cut the trees till the pendency of the suit. 4. I have heard Shri P.K. Jaiswal, learned counsel for the revisionists and Shri Mahendra Kumar Sharma, learned counsel for the opposite parties No.1 and 2. 5. It has been submitted by the learned counsel for the revisionists that the learned District Judge while deciding the appeal failed to consider that the suit was filed after the situation of the spot was changed in contravention of the interim order dated 06.03.2014. 5. It has been submitted by the learned counsel for the revisionists that the learned District Judge while deciding the appeal failed to consider that the suit was filed after the situation of the spot was changed in contravention of the interim order dated 06.03.2014. It has also been argued that the learned trial court had recorded a definite findings that the opposite parties No.1 and 2 could not establish their title and possession over the property in suit, but the learned District Judge without any sufficient reason, reversed the finding and allowed the application for interim injunction. The opposite parties No.1 and 2 had actually concealed the material fact from the Court and in contravention of the earlier order directing the parties to maintain status quo, changed the nature of property and then filed the appeal. In these circumstances, the order passed by the learned District Judge is erroneous and is liable to be set aside. 6. Learned counsel appearing on behalf of the opposite parties No.1 and 2 has raised a preliminary objection with regard to maintainability of the present revision and has submitted that against the appellate order, no revision under Section 115 CPC is maintainable. He has referred to the amended Section 115 CPC in which it has been provided that a revision under Section 115 CPC can be filed only in respect of the orders passed in a case decided in an original suit or other proceedings. The appeal is an independent proceeding and as such against the appellate order, no revision under Section 115 CPC is maintainable. With regard to the impugned order, the submission of the learned counsel for the opposite parties No.1 and 2 is that the order has been passed with a view to protect the property which is subject matter of the original suit. It is submitted by the learned counsel that it is the duty of the Court to preserve and protect the property during pendency of the suit and it is for this purpose that the provisions of Order 39 Rules 1 and 2 CPC have been enacted. Moreover, by an order to maintain status-quo, there is no harm to any of the parties. 7. Moreover, by an order to maintain status-quo, there is no harm to any of the parties. 7. In a Full Bench decision of this Court, reported in 1979 ALJ Page 685, it has been held that although an appeal or a revision is treated as continuation of a suit but when the appeal or the revision is decided, such decision creates a different or a fresh case which arises out of the appeal or the revision. It has an identity and existence different from the case which arises out of the suit. The Hon'ble Full Bench of this Court has held that the phrase "case arises out of an original suit or other proceedings" will not include appeals or revisions. 8. In view of above decision of Hon'ble the Full Bench of this Court referred to above and even otherwise on merit, I do not find any illegality in the impugned order and as such the revision is devoid of merit and is liable to be dismissed. 9. The revision is hereby dismissed. Revision dismissed.