MUSADDI KHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) By this petition, the petitioner has assailed an order dated 22nd June, 2007 of the learned Additional District Judge whereby he upheld the order of learned Civil Judge holding that the application under Order 39 Rules 1 & 2 CPC made by the petitioner already stood decided by him and he was not required to re-decide the same and the interim injunction refused earlier was operative.

(2.) The brief facts relevant for the purpose of deciding this petition are that the petitioner's father filed a suit for permanent injunction in the year 1984 against the respondents. In the suit, petitioner's father filed an application under Order 39 Rules 1 & 2 CPC. This application was dismissed by learned Civil Judge by a speaking order passed on merits after hearing both the parties. It appears that father of the petitioner died during initial pendency of the suit and an application to bring LRs on record was not moved in time. However, later on an application to bring LRs was filed which was dismissed by the trial court holding that the suit had already abated. The two orders, one under Order 39 Rules 1 & 2 CPC and the other on application under Order 22 Rule 3 CPC passed by the trial court on 22nd August, 1987 were assailed by the petitioner in an appeal before the learned Additional District Judge being MCA Nos.284-285 of 1987. The learned Additional District Judge after considering the arguments of both the sides observed that the suit filed by the petitioner's father was rightly held abated and there was no ground to reverse the order passed by the learned Civil Judge on application under Order 22 Rule 3 CPC. The learned Additional District Judge, however, did not decide the appeal against the order passed by the Civil Judge on application under Order 39 Rules 1 & 2 CPC observing that it was unnecessary since the suit itself has become abated. Against this order dated 15th December, 1989 of learned Additional District Judge, a revision petition was preferred before the High Court and the High Court vide order dated 27th March, 1997 in para 8 observed as under :-

(3.) After making above observation regarding abetment, learned Judge allowed the petition in following terms :-