RAJENDER JAIN Vs. PRAVEEN JAIN

JUDGEMENT

(1.) CM No.11539/2007 (exemption) Allowed, subject to just exceptions. FAO(OS) No.325/2007 and CM No.11538/2007

(2.) This appeal is filed by the appellant, who is plaintiff in the suit being aggrieved by the order dated 16th July, 2007 whereby the learned Single Judge disposed of the applications of the appellant registered as IA No.6922/2006, IA 3213/2007 and IA No.7765/2007. In the suit, the learned Single Judge passed orders on 20rd March, 2007 disposing of IA Nos.1892/2004 and 4677/2005. By the aforesaid order, the ex parte injunction order dated 23rd March, 2004 passed on the first date was vacated and the defendant No.1 was held to be entitled to take possession of the premises from the defendants No.3,7 and 10. The defendant No.1 was also permitted to let out the property and/or portion of the premises with a direction to file accounts mentioning the rents realised from them from time to time. A restraint order was also passed by the learned Single Judge restraining the defendant No.1 from selling, mortgaging and / or creating third party interest in the property.

(3.) An application registered as IA No.6053/2007 was filed by the appellant contending, inter alia, that the defendant No.1 was trying to change the nature of the corpus of the suit property by making addition/alteration. The application and the contents thereof were considered by the learned Single Judge in the light of the documents available on record and also upon taking into consideration the earlier order dated 23rd March, 2004 The learned Single Judge recorded a finding at that stage that the appellant / plaintiff had yet to establish any right in the property. Reference was also made to the order passed in the rent control proceedings. Accordingly, while holding that there should be no prohibition on defendant No.1's right to use the property, the learned Single Judge dismissed the application by order dated 22nd May, 2007. Being aggrieved by the said order of dismissal, the appellant filed an appeal in this court, which was registered as FAO(OS) No.219/2007. By order passed by this court, the said appeal was disposed of on 6th July, 2007. This Court held that Court can always mould the relief to be given to the plaintiff and while doing so it could also hold that any construction made by the defendant would not defeat the claim of the appellant and such construction has not affected the rights of the plaintiff. However, it was also held that if there is any change in the nature of the suit property and in case the appellant succeeds in the suit, suitable directions can be issued to restore back the suit property to its original condition and for effective implementation. Another application registered as IA No.6922/2006 under the provisions of Order XXXIX Rule 2A of the Code of Civil Procedure was filed by the appellant in May 2006 before the learned Single Judge. In that application, the appellant / plaintiff had sought for orders as contemplated under Order XXXIX Rule 2A CPC for alleged violation of the order passed by the Court. The said application has been dismissed by the learned Single Judge by passing the impugned order holding that the appellant / plaintiff had yet to establish that he had a right in the suit property for grant of any relief. It was observed that the interim injunction order which was passed earlier, having merged with the final order, no case for taking action under Order XXXIX Rule 2A CPC was made out. The said findings are challenged on the ground that if there is violation of the interim injunction passed by this court, the Court can always pass orders under Order XXXIX Rule 2A CPC.