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2015 DIGILAW 885 (RAJ)

Vidya Devi v. Chautha

2015-04-20

ALOK SHARMA

body2015
JUDGMENT : Alok Sharma, J. A challenge has been made to the order dated 31-3-2015 passed by the Board of Revenue Ajmer (hereinafter `the Board'), whereby the Board even while holding that the revision petition filed by respondent before it was not maintainable, resorted to its superintending powers under Section 221 of the Rajasthan Tenancy Act, 1955 (hereinafter `the 1995 Act') and set aside the ad interim orders dated 20-1-2014 and 4-4-2014 passed in two partition suits filed before the trial court. 2. Mr. Sudesh Bansal, counsel for the petitioners-plaintiffs (hereinafter `the plaintiffs') has submitted that a revision petition against ad interim orders passed by Sub Divisional Officer Chomu in the course of partition suits was not maintainable before the Board, as so held by it as the impugned order was appealable under Section 225 of the 1955 Act. He submitted that the resort to superintending powers of the Board under Section 221 of the 1955 Act was not available to the Board in the circumstances to circumvent the absence of jurisdiction in hearing a challenge to the impugned orders on the revision petition laid before it. Counsel submitted that the status quo order dated 20-1-2014 passed in the application under Order 39, Rule 1 &2 CPC read with Section 212 of the 1955 Act in the suit laid by the plaintiffs was thus wrongly set aside by the Board, even while the said application was pending before the trial court for final adjudication. 3. Mr. R.P. Singh, learned Senior Advocate appearing with Mr. Shashikant Saini on behalf of respondent No. 1 (hereinafter `the defendant'), submitted that superintending powers under Section 221 of the 1955 Act have been rightly exercised by the Board in view of gross injustice being perpetrated on the defendant, in view of the fact that even as per plaintiffs' own admission the land earlier in the co-khatedari of the contesting parties had been divided according to "eucV", which is equivalent to a family settlement, on the basis of which each party was in duly demarcated physical possession of its actual share in the ancestral land. In the circumstances the ad interim injunction continued for a period of one year even while the application for interim relief was not being decided was an abuse of the process of the court and overlooked by the trial court. In the circumstances the ad interim injunction continued for a period of one year even while the application for interim relief was not being decided was an abuse of the process of the court and overlooked by the trial court. He has submitted that the Board was also seized of the fact that an earlier suit for partition filed by one of the co-khatedar was pending in which the plaintiffs and respondents in the subsequent suit were all parties, and therefore the subsequent suit was liable to be stayed and yet the trial court was not addressing the defendants' application under Section 10 CPC. It has been submitted that its superintending powers have been used by the Board in the overall facts of the case to ensure justice as it is the obligation of the Board as the highest revenue court to come down hard where the facts before it so warrant and the Board prima facie finds that judicial proceedings before a subordinate revenue court were being resorted not for the vindication of rights but as an instrument of oppression/ pressure. 4. Heard learned counsel for the parties and perused the material available on record as also the provisions of Sections 225, 230 and Section 221 of the 1955 Act. 5. It is well settled that when a provision for an appeal is available, as in the instant case under Section 225 of the 1995 Act to the Revenue Appellate Authority against an order including an interim one passed by the Sub Divisional Officer, a revision petition before the Board would not be maintainable. Reference in this regard can be had to the judgment of the Hon'ble Supreme Court in the case of A. Venkatasubbiah Naidu v. Chellappan [ AIR 2000 SC 3032 ], wherein it has been held that any interim order passed by a Civil Court is appealable in terms of Order 43, Rule 1 CPC. A party aggrieved of an ad-interim injunction can either move the appellate court or approach the same court which has passed the same by way of an application under Order 39, Rule 3A CPC if the order be an ex parte one. In fact the Board itself in its impugned order has held that the revision petition laid before it against an ad-interim order was not maintainable. In fact the Board itself in its impugned order has held that the revision petition laid before it against an ad-interim order was not maintainable. It is true that the defendant had also moved an application under Section 10 CPC for the reason that prior to laying of the partition suit by the plaintiff, one of the co-khatedar had earlier also filed a similar suit. In the circumstances the Board could indeed have required the trial court to dispose the said application within a short time but could not have interfered with the ad interim order of status quo passed by the trial court for reason of its lack of jurisdiction in a revision owing to availability of an appeal against the impugned order. 6. In my considered opinion, subsequent to dismissing the revision petition as not maintainable under Section 230 of the 1955 Act, there was no occasion for the Board to invoke its superintending powers under Section 221 of the 1955 Act, more so when the respondent defendant was not without a legal remedy. The Board's order dated 31-3-2015 is therefore set aside. The interim order dated 20-1-2014 passed by the Sub Divisional Officer Chomu is ordered to continue till the decision on the plaintiffs' application under Order 39, Rule 1 &2 CPC read with Section 212 of the 1955 Act, which is stated to be pending before the said court. 7. That however is not the end of the matter. The defendants shall have right to argue on their Section 10 CPC application and state that the plaintiff's suit ought to be stayed and point out that even otherwise as per plaintiff's own admission of a "eucV", they have no case for an interim injunction. For reasons of balancing the rights of the parties, I would direct the trial court i.e. Sub Divisional Officer Chomu to decide the pending application filed by the plaintiff under Order 39, Rule 1 &2 CPC read with Section 212 of the 1955 Act as also the application filed by defendants under Section 10 of CPC within a period of ten days from the date of receipt of certified of this order. If necessary the matter be preponed. Counsel for the plaintiff states that the plaintiffs would have no objection to the proponent of the matter, if warranted for time bound compliance with the order of this court. 8. If necessary the matter be preponed. Counsel for the plaintiff states that the plaintiffs would have no objection to the proponent of the matter, if warranted for time bound compliance with the order of this court. 8. The writ petition stands disposed of accordingly. Petition disposed of.