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2022 DIGILAW 2961 (RAJ)

Jagjeet Singh v. State of Rajasthan

2022-12-14

ARUN BHANSALI

body2022
ORDER 1. This writ petition has been filed by the petitioners aggrieved against the order dated 27/4/2022 (Annex.P/8) passed by the Board of Revenue and order dated 26/10/2021 (Annex.P/6) passed by the SDO cum Assistant Collector, Hanumangarh, whereby, ad interim injunction has been granted by the SDO and the revision petition filed by the petitioners has been rejected by the Board of Revenue. 2. One Major Singh and Kour Singh s/o Banta Singh filed a suit for partition and perpetual injunction before S.D.O., Hanumangarh inter alia against Baldev Singh & Others. Along with the said suit, an application under Section 212 of the Rajasthan Tenancy Act, 1955 (’the Act, 1955’) seeking temporary injunction was also filed. 3. Written statement was filed by defendants Baldev Singh and Sohan Singh s/o Baldev Singh along with a counter claim. 4. S.D.O. vide its order dated 2/9/2021 (Annex.3) decided the application under Section 212 of the Act, 1955 and ordered for demolition of the house, for opening of the way and restrained the parties from interfering in the use of way till the pendency of the suit. 5. On 25/10/2021 an application was filed by respondent Baldev Singh purportedly under Section 151 CPC against the respondents herein seeking permanent injunction against the respondents from interfering in the way. 6. The S.D.O. by its order dated 26/10/2021, while ordering for issuance of notice to the respondents, granted ex parte injunction. 7. Feeling aggrieved, the petitioners filed revision petition before the Board of Revenue. The Board of Revenue by its order dated 27/4/2022 came to the conclusion that the order passed by the S.D.O. did not call for any interference and consequently rejected the revision petition. Feeling aggrieved, present petition has been filed. 8. It is submitted by learned counsel for the petitioners that passing of the order dated 26/10/2021 by the SDO was ex facie illegal inasmuch as once the suit pertaining to the land in question was already pending consideration and the application under Section 212 of the Act, 1955 had already been decided on 2/9/2021, there was no occasion for the respondents to file an application under Section 151 CPC, which was not dealt with in the suit and has been independently registered, on which ex parte injunction has been granted. 9. 9. Submissions have been made that filing of the proceeding under Section 151 CPC independent of the pending suit was not maintainable and passing of the order by the SDO was without jurisdiction. 10. Submissions have been made that entire attempt on the part of the respondents has been to seek an order at the back of the petitioners, who are already appearing in the suit and, therefore, devise of moving an independent application under Section 151 CPC was employed, which action is wholly illegal and the Board of Revenue by rejecting the revision petition has perpetuated the said illegality and, therefore, the orders impugned deserve to be set aside. 11. Learned counsel appearing for the respondents attempt to make submissions that looking to the urgency involved in the matter, the application was filed by the respondents on which ex parte interim injunction was granted and, therefore, the Board of Revenue was justified in rejecting the revision petition. 12. Submissions have been made that the petitioners can very well appear before the SDO and make submissions as the order passed is not final and no case for interference is made out in the present writ petition. 13. By order dated 12/10/2022, a coordinate Bench of this Court while fixing the matter on 1/11/2022 ordered that counsel for the respondent will explain that in which pending suit before the learned SDO, Hanumangarh proceedings under Section 151 CPC have been initiated by Baldev Singh. 14. Today, learned counsel for the respondents fairly indicated that the application has been filed independent of the pending suit as it cannot be deciphered from the record as to whether the same was filed in pending suit or not. 15. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 16. The pendency of the suit, wherein, written statement along with counter claim has been filed by Baldev Singh is not in dispute. It is also not in dispute that on the application filed under Section 212 of the Act, 1955, an order has been passed on 2/9/2021 by the SDO. 17. Thereafter, if the respondent Baldev Singh wanted to move any application in the pending suit, there was no occasion for the SDO to pass ex parte order when in the suit parties were represented. 17. Thereafter, if the respondent Baldev Singh wanted to move any application in the pending suit, there was no occasion for the SDO to pass ex parte order when in the suit parties were represented. It is not the case of respondent Baldev Singh that before filing of the said application under Section 151 CPC copy whereof was served on the parties/counsel representing the parties. 18. Further a perusal of the application under Section 151 CPC also reveals that few of the respondents are not even parties to the suit or counter claim and, therefore, without impleading them as party to the suit/counter claim, no relief could have been claimed against them insofar as the pending suit is concerned, therefore, apparently, the application under Section 151 CPC, which has led to passing of the order dated 26/10/2021, was not filed in the pending suit. 19. As already observed hereinbefore, despite opportunity granted by this Court, nothing has been placed on record to indicate that the application under Section 151 CPC has been filed in any pending suit. 20. Once it is apparent that the application was not filed in the pending suit, as to whether the application under Section 151 CPC independent of any pending proceedings before the SDO could be maintained, the answer would be ’No’, inasmuch as the provisions of Section 151 CPC are merely procedural, saving the inherent power of the court and are not substantive so as to empower any party to launch any proceedings independent of pending suit/proceedings under any statute, claiming any relief. 21. In that view of the matter, as independent application under Section 151 CPC was not maintainable, passing of the order dated 26/10/2021 (Annex.6) by the SDO cannot be sustained. The rejection of revision petition by the Board of Revenue, without referring to the said aspect and on assuming as if the application was made in the suit, cannot be sustained. 22. Consequently, writ petition filed by the petitioners is allowed. The order dated 26/10/2021 (Annex.6) passed by the SDO, Hanumangarh and order dated 27/4/2022 (Annex.8) passed by the Board of Revenue are quashed and set aside. 23. The application filed by the respondent Baldev Singh under Section 151 CPC is dismissed as not maintainable.