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2015 DIGILAW 707 (ALL)

Madan Swaroop Shrotriya Trust v. Uma Shrotriya

2015-04-06

ASHWANI KUMAR MISHRA

body2015
JUDGMENT Ashwani Kumar Mishra, J. At the very outset, Sri P.K. Jain, Learned Senior Counsel, appearing for the respondents submits that opposite party no.1 has died. This fact is disputed. However, it is admitted to the respondents that heirs of respondent no.1 are already on record of the proceedings. Since the heirs of opposite party no.1 are already on record, this Court can proceed with disposal of the matter, on merits. 2. This petition is directed against an order dated 25th August, 1995, whereby an application filed by the plaintiff under Section 144 /151 CPC was allowed. The application under Section 144 /151 CPC was filed on the premise that initially while entertaining the suit an ex-parte injunction was passed on 15th November, 1994, which had been violated, and therefore, the plaintiff's possession is liable to be restored over the suit property. This application under Section 144 /151 CPC was allowed. Aggrieved by it, a revision was filed. Initially, the revision was dismissed on 11.10.1995, but a challenge made to such order in Writ Petition No.29403 of 1995 succeeded, and the revision was directed to be considered afresh on merits. It is pursuant to such directions issued by the writ court dated 27.10.1995 that this revision has now been decided, on merits. The revisional court has dismissed the revision with costs, vide order dated 2.2.2015. 3. Sri Pradeep Kumar, learned counsel appearing for the defendant petitioner, contends that ex-parte injunction was granted on 15.11.1994, whereafter, the suit itself has been dismissed on 27th November, 2006, and although a restoration application has been filed, but the order dismissing suit in default continues to remain in existence, even as on date. Learned counsel, therefore, submits that once the suit has been dismissed and continues to remain as such, the ex-parte injunction granted on 15.11.1994, merged with dismissal of the suit, vide order dated 27.11.2006, and in such view of the matter, the application under Section 144 /151 CPC could not be sustained. Learned counsel, therefore, submits that revision was liable to have been disposed of noticing the aforesaid facts, but the same has not been done, rather the revision has been rejected, on merits, which will have the effect of reviving the order of the trial court dated 25th August, 1995, which is impermissible in view of the dismissal of suit. 4. Learned counsel, therefore, submits that revision was liable to have been disposed of noticing the aforesaid facts, but the same has not been done, rather the revision has been rejected, on merits, which will have the effect of reviving the order of the trial court dated 25th August, 1995, which is impermissible in view of the dismissal of suit. 4. Sri P.K. Jain, Learned Senior Counsel appearing for the respondents, on the other hand, fairly conceded the factual position that the suit continues to remain dismissed in default, as on date. Learned counsel also does not dispute the proposition that once the suit has been dismissed, all interim proceedings merges therein. Learned counsel, however, submits that as and when proceedings of the suit are restored, the interim proceedings also would stand revived. 5. Having considered the respective submissions, aforesaid, this Court is of the opinion that with the dismissal of suit in default on 27.11.2006, the order granting ex-parte injunction also seized to exist. In such circumstances, the very basis for allowing application under Section 144 /151 CPC, vide order dated 25th August, 1995, no longer survived. In such view of the matter, the proceedings ought to have been disposed of, as having become infructuous. In view of the aforesaid factual scenario, the revisional court could not have dismissed the revision, on merits. The fact that a restoration was pending or the possible outcome of the restoration of proceedings, is an aspect, which required no comment, at this stage. 6. In view of the above, this petition stands disposed of by clarifying that in view of the dismissal of suit in default, the interim orders dated 15.11.1994 and 25th August, 1995 have seized to exist, as they have merged with the order, dismissing suit in default, dated 27.11.2006, and the order dated 2.2.2015 stands modified, accordingly. It is, however, clarified that this order will have no effect upon the restoration proceedings, or the consequences, which may arise out of any order passed in such proceedings. It goes without saying that the restoration proceedings would be considered by the court concerned, in accordance with law, without granting any unnecessary adjournment to either of the parties, except upon payment of cost.