J.P.Semwal - (1.) HEARD Shri V. K. Singh learned counsel for the appellant and Shri V. C. Singh learned counsel for the respondents.. Learned counsels for the parties agree that the appeal may be disposed of at this stage and the application dated 2-11-1989 for temporary injunction need not to be disposed of.
(2.) THIS appeal has been preferred against the order dated 31-7-1989, passed by the 1st Addl. District Judge, Ballia rejecting the application moved under Order 39 Rule 2-A CPC, by the defendant-appellant. A suit for permanent injunction bearing original suit no. 499 of 1980 was filed by Mahesh Prasad and other plaintiffs-respondents for restraining the defendants- appellant from interfering in the possession of plaintiffs-respondents over Sikmi plots no. 1816 and 973 and also for demolition of the. contractions made by the defendant in plot no. 973. The 3rd Addl. Mnnsif Ballia partly decreed the suit for permanent injunction in respect of plot no. 1015 and dismissed the suit in respect of plot no. 973 by the judgment and decree dated 8-2-1988. Aggrieved by the said Order the plaintiffs filed Civil Appeal No. 72 . of 1988 and the defendant appellant Bhirgu Dayal also filed cross objection. During the pendency of the appeal, the defendant appellant -Bhirgu Dayal filed an injunction application on 9-1-1989 for restraining the plaintiffs from interfering in his possession or making any construction over the land in dispute. The District Judge passed the order on the same day directing the parties to maintain "status quo. The said order was served upon the plaintiffs through Shri Ranjeet Singh, Advocate, who was appointed as Vakil Commissioner by the court. The plaintiff respondents moved an application for recalling the order dated 9-1-1989 and the learned District Judge, after hearing the parties passed an order on 19-1-1989, directing that neither party without approval of the court, would alter or make any construction on the land in dispute. He also gave direction for making a brick passage from Town Area road to the Ahata of the plaintiffs with under-ground drainage asking the parties to deposit Rs. 1000/-. The plaintiff-respondents did not" deposit the said amount. The Vakil Commissioner went to the spot on 11-2-1989 for execution of the order passed by the District Judge but the plaintiffs are alleged to have caused obstructions and the Vakil Commissioner had to report the matter at Police Station Kotwali. The plaintiffs-respondents are further alleged to have raised construction on 16-2-1989 due to, which Nabdan and door of the defendant appellant is alleged to have been completely closed. On these allegations, the defendant appellant moved application under Order 39 Rule 2-A CPC before the appellate court on 5-5-1989. The 1st Addl. District Judge, Ballia, without going into the merits of the allegations, rejected the. application solely an the ground that as appeal no. 72 of 1988, had been decided on 15-5-1989, the application under Order 39 Rule 2-A CPC was not maintainable. The learned Addl. District Judge, placed reliance on ruling of this Court reported in case of Ram Shanker v. Suraj Prasad, 1962 ALJ 201 wherein it has been held that once the suit is concluded whether in the original court or in the appeal, the court would become functus officio for the purposes of taking any action or passing any order on the Application for disobedience of injunction.
(3.) AGGRIEVED by the impugned order, the appellant has preferred this appeal. The learned counsel for the appellant has vehemently argued that the aforesaid authority has no application after the amendment or Order 39 Rule 2-A CPC. A very short question is involved in this appeal; whether the application under Order 39 Rate 2-A CPC was not maintainable after the decision of the appeal No. 72 of 1988 and the 1st Addl. District Judge had become functus officio for the purposes of taking any action or passing any order on the application for disobedience of injunction.;