S.R.Singh, J. - (1.) -Cynosure of attention is the order dated 19.12.1997 passed by 2nd Addl. District Judge, Dehradun in Civil Revision No. 114 of 1997, Sant Ram and another v. U.P. Jal Nigam and others, the correctness of which has been challenged in the instant petition. The aforesaid revision was preferred against the order dated 14.7.1997 passed by the 1st Addl. Civil Judge, (Sr. Division) Dehradun on an application for temporary injunction filed in suit No. 432 of 1997.
(2.) The suit was instituted by Sant Ram and Ratan Singh in their own rights as ZAM1NDARNA/KASHTKARAN/INHABI- TANTS OF Mauza Kharsi Pargana Jansar Bhabar, District Dehradun and also in representative capacity under Order 1, Rule 8 of the Code of Civil Procedure on behalf of other ZAMINDARS/KASHTKARAN/BASINDAGAN of Mauza Kharsi for perpetual injunction restraining the defendants from constructing TANK for storing water quashing out of SPRINGLET in Mauza Kharsi Khet Vishlang Pergana Jansar Bhabar, District Dehradun and from channelling the water through pipelines or other means from Mauza Kharsi Khet Vishlang to village Hatgaon or any other village. The relief of mandatory injunction seeking removal of the pipelines already laid for channelling the water from Kharsi Khet Vishlang Pargana Jansor to village Hatgaon was also claimed by the plaintiffs. The case as set out in the plaint was that the plaintiff and other denizens of village Kharsi in the district of Dehradun owned the SRINGLET and were entitled to use it to the exclusion of any one else as per customs in vogue since time immemorial. Wajeb-ul-arz entries made in the settlement years 1872 and 1884 were cited to magnify their claim over the SPRINGLET. It is also alleged in the plaint that Pargana Jansar was partially prohibited zone/area and the laws prevailing in other areas of Uttar Pradesh were not applicable in the said area and the rights of the inhabitants were regulated by customs prevailing there. Along with the suit, an application for temporary injunction was filed attended with an affidavit seeking injunction against the defendants and their servants from raising any tank and storing water issuing from the SPRINGLET situate in Kharsi Khat Vishlang Pargana Jhansar. The trial court vide its order dated 14.7.1997 declined to grant exparte injunction prayed for and issued notice to the defendants under Order 39, Rule 3 CPC. The reason spelt out was that the plaintiffs had prayed for mandatory injunction as welt and no case for grant of exparte injunction was made out. Aggrieved by the order, the plaintiffs preferred a revision which culminated is being allowed on 19.12.97. The order of the revisional court embodied direction for the defendants to maintain status quo and not to make any construction on the suit land.
(3.) Sri Sabhajeet Yadav, appearing for the petitioner canvassed that no revision lay against an order refusing to grant exparte injunction and issuing notice to the defendants under Rule 3, Order 39 CPC 1908 (in short the 'Code') and in any case, the revisional court was not vindicated in interfering with the discretionary order passed by the trial court. Sri RAJESH TANDON representing the plaintiff respondents made a rival submission that the order dated 14.12.1997 in so far as the trial court refused to grant exparte injunction, approximated to a 'case decided' within the ambit of Section 115 of the Code and as such, it was revisable and on merit, the revisional court was justified in injuncting the defendants from making any construction on the suit land.;