INDER SEN ISRANI, J. - (1.) THIS is a revision petition against the order dated 11. 2. 1987 passed by the learned Additional Munsiff and Judicial Magistrate, Jaipur District, Jaipur in Civil Misc. Case No. 24/87 whereby he allowed the application of the non-petitioner for issue of injunction.
(2.) BRIEFLY stated the facts of the case are that the non-petitioner tenant filed a suit on 2. 2. 1987 for issue of perpetual injunction with the allegation that the disputed shop was leased out to him on Rs. 40/- per month and that the shop remained closed in the months of September and October, 1986 on account of personal reasons. On 3. 11. 1986 when he went to the shop, he found that the petitioners put their lock on the shop. Thereafter he met the petitioner No. 1 who assured him to open the lock, but did not remove the lock, Alongwith the suit an application under Order 39 Rule 2 read with Sec. 151 C. P. C. was also filed praying that an injunction in mandatory form may be issued against the petitioners to remove the lock put on the shop illegally. The petitioners submitted their reply to the said application, in which it was alleged that the disputed shop was leased on at Rs. 80/- p. m. and that the non-petitioner had also not paid the rent since some time. It was further stated therein that the non-petitioner had no business in the shop and when the petitioner No, 1 demanded rent from the petitioner, he handed over possession of the shop to him and took away some goods lying in the shop, but receipt of the goods was not allowed to be taken as the rent was still due and it is further stated that the non-petitioner stated that he would remove the rest of the goods after making payment of arrears of rent. After hearing both the parties, the learned Addl. Munsiff vide his order dated 11. 2. 1987 allowed the said application and directed the petitioners to hand over possession of the disputed shop within one month, to the non-petitioner by opening their lock, failing which the non-petitioner tenant would be at liberty to move an application to the court for getting the possession of the shop at the expense of the petitioners. Being dissatisfied with the above order, this revision petition has been filed by the petitioners. A preliminary objection was raised by Shri Rajendra Prasad, learned counsel for the non-petitioner to the effect that since the application was filed under 0. 39 R. 2 read with Sec. 151 C. P. C. hence the petitioner could have filed an appeal against the same as provided under 0. 43 R: C. P. C. Therefore, no revision could have been filed against the impugned order. Hence the revision petition is liable to be dismissed on this ground alone. Learned counsel Shri R. S. Kejriwal, appearing on behalf of the petitioners has stated that only revision could have been filed against the impugned order as the injunction has been granted in mandatory form, which was beyond the scope of 0. 39 Rule 2 C. P. C. and the trial court has evidently exercised its powers under Sec. 151 C. P. C. and, therefore, since no appeal could be filed against the order passed under Sec. 161 C. P. C. , it was only proper to file a revision petition against the same. Even though 1 have heard both the parties on merits also, I am inclined to decide first the preliminary objection raised by the non-petitioner.
(3.) MY attention has been drawn to the case of Minerva Siksha Samiti vs. Smt. Mithilesh Kumari (1 ). This was a case in which the application in the trial court was moved only under Sec. 151 C. P. C. for grant of mandatory injunction, it was observed by this court in the above authority that "ordinarily under Order 39 R. 1. and 2 C. P. C. a mandatory injunction cannot be issued. The court in its powers under 0. 39 Rules 1 and 2 C. P. C. 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 the inherent powers under Sec. 151 C. P. C. to obtain the mandatory injunction sought by him in his application, dated 2. 7. 1984. Therefore, the impugned order was not appellable, but it could be challenged by way of filing revision petition under Sec. 115 C. P. C. . " My attention has also been drawn to the case of Ram Chandra Tanwar Vs. Ramrakhmal Ami Chand (2) in which on an application filed under 0. 39. R. 1, it was held by this court that in granting injunction, the court can do no more than restore the position as it existed on the date of the suit. The case of Deva Vs. Godavar (3) is also to the same effect. In this case also an application alongwith plaint was filed under Order 39 Rules 1 and 2 C. P. C. read with Sec. 151 C. P. C. Learned Munsiff after hearing both the sides issued injunction in mandatory and prohibitory form and directed that the sand wall be removed. On appeal the learned District Judge accepted the appeal and set-aside the order of learned Munsiff. Dissatisfied with the order of learned Distt. Judge, a revision petition was filed, which was allowed and the order of learned Munsiff was upheld. ;