Rajasthan High Court - Jodhpur
Pura Ram vs Jeta Ram on 8 May, 2018
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S. B. Civil Writ Petition No. 7893 / 2016
Pura Ram s/o Shri Hakaram, aged about 56 years, R/o Gawada,
Tehsil Rani, District Pali, Rajasthan
----Petitioner
Versus
Jeta Ram s/o Shri Wagta Ram, R/o Gawada, Tehsil Rani, District
Pali, Rajasthan
----Respondent
_____________________________________________________
For Petitioner : Mr. Deelip Kawadia
For Respondent : Mr. Rakesh Arora
_____________________________________________________
HON'BLE MS. JUSTICE NIRMALJIT KAUR
Order 08/05/2018 The present writ petition has been preferred by the petitioner against the Order dated 22.04.2016 passed by the Board of Revenue, Rajasthan, Ajmer granting status quo on an application under Section 151 of C.P.C. moved by the respondent as well as Order dated 04.02.2016 passed by the Revenue Appellate Authority, Pali staying the operation of the Order dated 20.03.2015 passed by the Sub-Divisional Officer, Rani, District Pali.
Admittedly, the petitioner filed an application for seeking temporary injunction in the matter pending before the Sub (2 of 4) [CW-7893/2016] Divisional Officer, Rani, District Pali (for short "S.D.O." hereinafter) in the revenue suit under Section 88, 53, 188 & 92-A of the Rajasthan Tenancy Act, 1955. The S.D.O. passed the order dated 20.03.2015 partly allowing the application for temporary injunction filed by the petitioner and restrained the respondent not to block the way leading to the land of the petitioner and also not to raise any construction so as to obstruct the movement of the petitioner in any way. Thereafter, the respondent assailed the Order dated 20.03.2015 passed by the S.D.O. before the Revenue Appellate Authority, Pali (for short "R.A.A." hereinafter) by way of filing an appeal. The R.A.A. granted ex-parte interim order and stayed the effect and operation of the Order dated 20.03.2015 passed by the S.D.O. vide its' Order dated 04.02.2016. Aggrieved, the petitioner challenged the said order before the Board of Revenue, Rajasthan, Ajmer (for short "B.O.R." hereinafter) by filing the revision petition inter alia raising the argument that the ex-parte order was passed by the R.A.A. without deciding the application under Section 5 of the Limitation Act which was unlawful and against the settled proposition of law.
The Order 41 Rule 3-A of C.P.C. inserted by the Code of Civil Procedure (Amendment) Act, 1976 reads as under :-
"3-A. Application for condonation of delay.- (1) When an appeal is presented after the expiry of the period of limitation specified there for, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the court that he had sufficient cause for not preferring the appeal within such period.
(2) If the court sees no reason to reject the application without the issue of a notice to the respondent, notice (3 of 4) [CW-7893/2016] thereof shall be issued to the respondent and the matter shall be finally decided by the court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be.
(3) Where an application has been made under sub-
rule (1), the court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the court does not, after hearing under rule 11, decide to hear the appeal."
A perusal of the same shows that if an appeal is filed after the expiry of period of limitation, no interim order can be passed without condoning the said delay. In the present case, the R.A.A. without deciding the application seeking condonation of delay accompanying the appeal stayed the effect and operation of the order passed by the S.D.O. in favour of the petitioner restraining the respondent from blocking the way. No doubt, the B.O.R. stayed the operation of the Order dated 04.02.2016 passed by the R.A.A. vide its Order dated 11.03.2016 but simultaneously on an application under Section 151 of C.P.C. moved by the respondent ordered status quo till the next date of hearing vide Order dated 22.04.2016. The order of status quo granted by the B.O.R. was, although, uptil the next date of hearing but the fact remains that it nullifies its own order staying the effect and operation of the Order dated 04.02.2016 passed by the R.A.A. This Court may not have interfered taking into account that the matter is still pending both before the R.A.A. and the B.O.R. but for the fact that the very interim order is against the statute/ provisions of C.P.C. as reproduced above. No interim order could have been passed without first deciding the application seeking condonation of delay. The B.O.R. too finding the order of R.A.A. to (4 of 4) [CW-7893/2016] be illegal stayed its effect and operation but erred in granting status quo thereby putting the clock back to square one. The same has resulted in obstructing the way of the petitioner being used by him in pursuance to the order passed by the S.D.O. Rani.
Accordingly, the writ petition is allowed. The Order dated 22.04.2016 passed by the Board of Revenue, Rajasthan, Ajmer is set aside and the Revenue Appellate Authority, Pali is directed to decide the appeal filed by the respondent as expeditiously as possible.
(NIRMALJIT KAUR), J.
Inder/58