S.N. BHARGAVA, J. -
(1.)THIS is a revision petition against the order of Munsif cum Judicial Magistrate, Bharatpur passed on 18.7.84 rejecting the application filed by the petitioner under Section 151 C.P.C. for grant of mandatory injunction. '
(2.)PETITIONER Minerva Shiksha Samiti is running a school having more than 350 students in the disputed premises, which was taken on rent from the mother of the non petitioner in July, 1978 at the rate of Rs. 100/- P.M. The rent was gradually increased to Rs. 180/- P.M. The non-petitioner started hare-ssing the petitioner and, therefore, it had become necessary for the petitioner to file the present suit on 9.7.82, for permanent injunction restraining the non-petitioner from interfering with the peaceful possession of the disputed property. Alongwith the plaint the plaintiff had also filed an application under order 39, Rule 1 and 2 Civil Procedure Code. An Ad-interim order was passed by the trial Court on 9.7.1982 and since the non-petitioner refused to accept the service, ex-parte proceedings were ordered on 31.7.1982 and the ad-interim order was confirmed by order dt. 5.8.1982 restraining the defendant from dispossessing the plaintiff from the disputed premises and further not be interfere with the plaintiff's right to use and enjoy the whole of the disputed property. The suit was dismissed in default on 6.10.1982. The petitioner moved an application for restoration and the suit was restored on 11.11.82 and there after the suit was decreed ex-parte on 9.12.1982. Thereafter an application under Order 9 Rule 13 C.P.C. was filed by the non-petitioner for setting aside the exparte decree and the trial Court by its order 14.11.83 set aside the ex-parte decree 6c restored the suit to its original number. Inspite of the order of the trial Court dated 5.8.1982, the non-petitioner locked the disputed premises from inside on 29.6.1984 and therefore, the petitioner moved an application under sec. 151 C.P.C. on 2.7.1984 supported by an affidavit of Shri Mohan Singh. The trial Court appointed a commissioner and issued notices of the said application to the non-petitioner. The non-petitioner filed a reply to the said application on 6.7.1984. The Commissioner inspected the site on 5.7.1984 and submitted its report. Another Commissioner was appointed, who inspected the site on 16.7.1984 and also submitted his report. The trial Court after hearing the parties, rejected the application dated 2.7.1984 u/s 151 C.P.C. and it is against this order that the present revision petition has been filed.
Learned counsel for the non-petitioner has taken a preliminary objection that the revision petition is not maintainable as the impugned order is covered under Order 39 Rule 1 and 2 C.P.C. and which is appealable and therefore, the petitioner ought to have filed an appeal against the impugned order dt. 18.7.1984 and has placed reliance on Chandmal vs. Ram Kishan(l), Pukhraj Vs. Ghewar Chand (2), Nanda Pictures vs. Art Pictures (3) and Ram Chandra vs. M/s. Ram Rakhmal (4). He has further submitted that even if the order is held to have been passed under section 151 C.P.C. and not covered under Order 39 Rule 1 and 2 C.P.C, the High Court should not interfere in revision in such matter and has placed reliance on Nand vs. District Judge (5), Ajmer Singh vs. Omprakash(6) and Prem Chand v. Bajrangi Bai (7) and has submitted that since the order passed under Section 151 C.P.C. is discretionary, the revision petition is not maintainable even if the order is wrong and illegal unless there is ijuris-dictional error.
On the other hand, learned counsel for the petitioner has submitted that the order passed under Section 151 C.P.C. is not appealable and only revision petition is the proper remedy and in this connection he has placed reliance on Bevisnav Vs. Parma (8), Mohni Modak vs. Swaran Lata (9), Bajrang Rai Vs. Ismail Minya (10), Zila Parishad Vs. B.R. Sharma (F.B. ) (11), Gopal Krishna vs. State (12), Ammadar vs. Aziz Dar (13), Sanjanbam Mamta Devi vs. V.C. Manipur University (14), Smt. Gita Devi vs. Jokhi Ram Mohan Lal (15) and Harihar Pati Vs. Dyctary Khhtoi (16).
He has further submitted that the injunction in the mandatory form can be issued under the inherent powers of the Court under Section 151 C.P C. and in that connection has placed reliance on Manohar Lal Vs. Seth Hira Lal (17), Manga Vs. Rustam (18), Shri Rang Padmnabham Paropdesai Vs. Marino (19), Madan Mohan v. Ravti Prasad (20), Bajrang Rai v. Ismail Mian (supra), Bhagel Mina Vs. Mehboob Chick (21) and Gowardhan Singh Vs. Mulak Raj (22).
I have considered the submissions made by learned counsel for the parties in this respect and I have also perused the verious authorities cited at the bar. In my opinion, the preliminary objection raised by the learned counsel for the non-petitioner is not maintainable. The application was moved only under Section 151 C.P.C. and ordinarily under Order 39 Rules 1 and 2 C.P.C. a mandatory injunction can not be issued. The Court under its powers under Order 39 Rule 1 and 2 C.P.C. can 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 inherent powers under Section 151 C.P.C. to obtain mandatory injunction sought by him in his application dated 2.7.1984 and, therefore, the impugned order was not appealable, but it could be challenged only by way of filing revision petition under section 115 C.P.C.
(3.)LEARNED counsel for the non-petitioner vehemently submitted that even if the revision petition is maintainable this court should not interfere in the revisio-nal jurisdiction even if the order is wrong or not in accordance with law unless the trial Court has exercised its jurisdiction illegally or with material irregularity or the matter relates to the jurisdictional fact, and in this connection he has placed reliance on Hindustan Eronatic vs. Ajit Prasad (23), M.L. Sethi Vs. R.L. Kapoor(24) & Sher Singh v. it. Director Consolidation (25). LEARNED counsel for the non-petitioner then submitted that this court should not interfere to correct the errors of law or Act, however, erroneous that may be unless they have relation to the jurisdictional fact and since the trial court has jurisdiction to hear and decide the application u/s 151 C.P.C. this court should not interfere in revision petition.
On merits also he has submitted that the petitioner is not entitled to the discretionary relief as he is guilty of suppressing the material facts in his application dated 2nd July, 1984. According to him the petitioner had entered into a compromise on 11 7.1982 out side the court and in the said compromise had agreed to vacate the suit premises in the Ist week of February, 1983 and in pursuance to that agreement the petitioner herself had vacated the portion of the suit premises in the month of June, 1984 as will be evident by the site inspection report dated 16th July, 1984, wherein the commissioner did not find any articles of the petitioner present in the premises, which was locked from inside by the non petitioner and has placed reliance on Ganesh Anigrahi vs. Joore sahu (26) Lakshminarasimhaih vs. Valakki (27) and Mahua vs. Union of India (28).
On the other hand, learned counsel for the petitioner has submitted that the trial Court has committed serious illegality and material irregularity in not considering the site inspection note dated 5.7.1984 and other documents filed by the petitioner in support of his application under Section 151 C.P.C. Therefore, the order is liable to be quashed in the revision and in this connection has placed reliance on Smt. Vimla Devi vs. Jang Bahadur(29), Chagan Lal vs. Nanhe Shah (30) and Chagan Lal vs. Nanhe Shah (31).