- (1.) THIS civil revision under Sec tion 115 of CPC has been filed by the revi sionist against the order dated 15- 9-2008, passed by Civil Judge (Senior Division), Malihabad, Lucknow in Original Suit No. 521 of 2008, whereby the court below has passed an order of issuing notice on the application for interim injunction filed under Order XXXIX, Rules 1 and 2 of CPC. Revisionist filed a suit for permanent injunction against the defendants for restraining them from evicting the plaintiff/revisionist and his fam ily members from the house in question situ ated at Kanpur Road, Aashiyana, Lucknow. The revisionist also filed an application un der Order XXXIX, Rule 1 for the grant of interim injunction. The court below by the impugned order dated 15-9-2008 has ordered the issuance of notice on the interim injunc tion application. The revisionist feeling ag grieved by and dissatisfied with the im pugned order dated 15-9-2008 passed by the court below has filed this revision.
(2.) THE opposite parties have filed a short counter affidavit raising preliminary objection on the maintainability of the present re vision. Learned counsel for the opposite par ties has submitted that the order issuing notice on the interim injunction application is not a "case decided" within the meaning of Section 115 of CPC and the court has not committed any jurisdictional error so as to warrant any interference of this Court in the exercise of its power under Section 115 of CPC. Learned counsel for the applicant has placed reliance upon the decision of Apex Court in Kadiyala Ramrao v. Gutala Ramrao (2000) (3) SCC 87 and decision of this Court in 1993 (1) LCD 595 and has contended that 'issuing of a notice' come within the definition of "case decided" and the court below has committed illegality by not granting in junction but merely issuing a notice on the injunction application, ignoring the urgency involved in the matter.
(3.) LEARNED counsel for the opposite par ties while referring to the provisions under Section 115 of C. P. C. and Order 39, Rulees 1 and 2 of CPC, has argued that neither the case has been decided by the court below nor the Order issuing notice has finally disposed of the suit or other proceedings nor the order has caused failure of justice or irreparable injury to the revisionist. Learned counsel has further submitted that sub-Section (1) of Section 115 of CPC empowers the court to acquire the revisional jurisdiction and sub-Section (3) of Section 115 of CPC provides the manner in which revisional jurisdiction can be exercised. Any order passed on the interim injunction appli cation will not come within the meaning of "other proceedings" by a subordinate court as contemplated under Section 115 (1) of CPC. Issuing notices to the opposite parties is a step in aid to the exercise of jurisdiction by the subordinate court. Before exercise of power under Section 115 of CPC it is incumbent upon the court to see whether the order against which the revision has been filed is a "case decided" and whether there is jurisdictional error committed by the court below and fur ther the impugned order which has been passed, if it had been made in favour of the parties applying for revision would have fi nally disposed of the suit or other proceed ings or the order if allowed to stand would occasion a failure of justice or cause irrepa rable injury to the parties against whom it is made and has further submitted that issuing of a notice by the court below has simply postponed the decision on the interim appli cation to a future date and that stage has yet not arrived and the controversy raised is yet to be determined and adjudicated upon by the lower court.;