Rajasthan High Court - Jaipur
Prabhu Narain Khati And Anr. vs Daulat Ram Verma on 29 April, 1987
Equivalent citations: AIR1988RAJ53, 1987(2)WLN773
ORDER Inder Sen Israni, J.
1. This is a revision petition against the order dated 11-2-1987 passed by the learned Additional Munsiff and Judicial Magistrate, Jaipur District, Jaipur in Civil Misc. Case No. 24/87 whereby he allowed the application of the non-petitioner for issue of injunction.
2. Briefly stated the facts of the case are that the non-petitioner tenant filed a suit on 2-2-1987 for issue of perpetual injunction with the allegation that the disputed shop was leased out to him on Rs. 40/- per month and that the shop remained closed in the months of September and October, 1986 on account of personal reasons. On 3-11-1986 when he went to the shop, he found that the petitioners put their lock on the shop. Thereafter he met the petitioner No. 1 who assured him to open the lock, but did not remove the lock. Along with the suit an application under Order 39, Rule 2 read with Section 151, C.P.C was also filed praying that an injunction in mandatory form may be issued against the petitioners to remove the lock put on the shop illegally. The petitioners submitted their reply to the said application, in which it was alleged that the disputed shop was leased on at Rs. 80/- p.m. and that the non-petitioner had also not paid the rent since some time. It was further stated therein that the non-petitioner had no business in the shop and when the petitioner No. 1 demanded rent from the petitioner, he handed over possession of the shop to him and took away some goods lying in the shop, but receipt of the goods was not allowed to be taken as the rent was still due and it is further stated that the non-petitioner stated that he would remove the rest of the goods after making payment of arrears of rent.
3. After hearing both the parties, the learned Addl. Munsiff vide his order dated 11-2-1987 allowed the said application and directed the petitioners to hand over possession of the disputed shop within one month, to the non-petitioner by opening their lock, failing which the non-petitioner tenant would be at liberty to make an application to the Court for getting the possession of the shop at the expense of the petitioners. Being dissatisfied with the above order, this revision petition has been filed by the petitioners.
4. A preliminary objection was raised by Shri Rajendra Prasad, learned counsel for the non-petitioner to the effect that since the application was filed under Order 39, Rule 2 read with Section 151, C.P.C. hence the petitioner could have filed an appeal against the same as provided under Order 43, Rule l(r), C.P.C. Therefore, no revision could have been filed against the impugned order. Hence the revision petition is liable to be dismissed on this ground alone.
5. Learned counsel Shri R. S. Kejriwal, appearing on behalf of the petitioners has stated that only revision could have been filed against the impugned order as the injunction has been granted in mandatory form, which was beyond the scope of Order 39, Rule 2, C.P.C. and the trial Court has evidently exercised its powers under Section 151, C.P.C. and, therefore, since no appeal could be filed against the order passed under Section 151, C.P.C., it was only proper to file a revision petition against the same.
6. Even though I have heard both the parties on merits also, I am inclined to decide first the preliminary objection raised by the non-petitioner.
7. My attention has been drawn to the case of Minerva Siksha Samiti v. Smt. Mithlesh Kumari, (1985) 1 WLN 1. This was a case in which the application in the trial Court was moved only under Section 151, C.P.C. for grant of mandatory injunction, it was observed by this court in the above authority that "ordinarily under Order 39, Rules 1 and 2, C.P.C. a mandatory injunction cannot be issued. The Court in its powers under Order 39, Rules 1 and 2, C.P.C. maintain status quo as it existed on the date of the suit and hence I am of the view that the petitioner was right in invoking the inherent powers under Section 151, C.P.C. to obtain the mandatory injunction sought by him in his application, dated 2-7-1984. Therefore, the impugned order was not appeal able, but it could be challenged by way of filing revision petition under Section 115, C.P.C."
8. My attention has also been drawn to the case of Ramchandra Tanwar v. Ram Rakhmal Amichand, AIR 1971 Raj 292, in which on an application filed under Order 39, Rule 1, it was held by this Court that in granting injunction, the Court can do no more than restore the position as it existed on the date of the suit.
9. The case of Deva v. Godar. 1978 WLN (UC) 354 is also to the same effect. In this case also an application along with plaint was filed under Order 39, Rules 1 and 2, C.P.C. read with Section 151, 'C.P.C. Learned Munsiff after hearing both the sides issued injunction in mandatory and prohibitory form and directed that the sand wall be removed. On appeal the learned District Judge accepted the appeal and set aside the order of learned Munsiff. Dissatisfied with the order of learned Distt. Judge, a revision petition was filed, which was allowed and the order of learned Munsiff was upheld.
10. It is evident from the law discussed above that when an application is filed only under Section 151, C.P.C. and when any order is passed on such application, a revision alone can be filed against the same as has been rightly held in the case of Minerva Siksha Samiti, (1985 (1) WLN 1) (supra). However, when an application is filed under Order 39, Rules 1 and 2 C.P.C. merely because Section 151, C.P.C. is also mentioned along with it, the application cannot be converted to have been filed only under Section 151, C.P.C. In the case of Deva (supra) even when an application was filed under Order 39, Rule 1 read with Section 151, CPC and an injunction in mandatory form was issued by the trial Court, an appeal was preferred in the Court of District Judge and thereafter a revision petition was filed in this Court against the order of learned District Judge. It is, therefore, clear that the complexion of the application filed under Order 39, Rules 1 and 2 will not change merely because it is added that it may be read with Section 151, C.P.C. My attention has been drawn to the case of Patram v. Rameshwar Dayal, AIR 1979 NOC 182 (Madh Pra) in which it has been stated that mere mention of Section 151, C.P.C. read with Order 39, Rules 1 and 2 shall not change the character and appeal alone could be filed against the order passed on such application.
11. Keeping in view the legal position discussed above I am of the opinion that the application filed in the trial Court was under Order 39, Rule 2, C.P.C. and mere mention of Section 151 C.P.C. does not change its character or complexion without expressing any opinion on the merits of the order passed by the learned trial Court I am of the view that no revision petition lies against such an order as the same is appeal able under the relevant provisions of C.P.C.
12. In the result, the revision petition is dismissed. The parties shall bear their own costs.