- (1.) UMESHWAR Pandey, J. Heard learned Counsel for the parties.
(2.) IN this writ petition the petitioner has challenged the order dated 23-12-2005 passed by the revisional Court. A suit for permanent injunction filed by the contesting respondent No. 1 an application under Order XXXIX, Rules 1 and 2 CPC was also moved for grant of temporary injunction. The trial Court not being fully satisfied for granting ex parte injunction order directed notices to be issued to the defendant petitioner as well as proforma respondents. Aggrieved against that order Civil Revision No. 219 of 2005 was preferred by the plaintiff before the District Judge and by the impugned order the District Judge admitted the same and directed the notice to be issued to the petitioner defendant and proforma respondents/defendants. He has also passed the interim order directing both the parties to maintain status quo regarding property in question.
(3.) IT has been submitted from the side of petitioner that the very order of entertaining the revision is illegal as the revision was not at all maintainable. The learned Counsel has cited the case law of Gayatri Devi & Ors. v. Shashi Pal Singh, 2005 (3) JCLR 146 (SC) : (2005) 5 SCC 527; Rajpal Singh v. Rich Pal Singh & Ors. , 2006 (1) JCLR 82 (All) : (2006) 62 ALR 278; Bhagwati Prasad Lohar & Ors. v. State of U. P. through Secretary of Legal Department, Lucknow, U. P. & Ors. , 2005 (60) ALR 512; Rajendra Singh & Ors. v. Brij Mohan Agarwal & Anr. , AIR 2003 Allahabad 180; Brij Bhushan v. District Judge, Saharanpur & Ors. , 2004 (1) JCLR 93 (All) : 2004 (1) AWC 502 and Shiv Shakti Co-op. Housing Society, Nagpur v. M/s. Swaraj Developers, 2003 (2) JCLR 756 (SC) : 2003 (4) Apex Decisions (SC) 238. With the strength of the aforesaid cases, the learned Counsel has emphasised that an order directing issue of notices to the defendants on a temporary injunction matter by the Court, is not revisable under Section 115 of CPC. The provisions of Section 115 CPC has been amended by Code of Civil Procedure (Amendment) Act, 1999 and in that proviso it has been added substituting earlier one and this Section for convenience is reproduced as below: Revision.- [1] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears - (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: [provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings]. [ (2) The High Court shall not, under this Section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. ] [ (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court]. Explanation: - In this section, the expression, "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding].;