ISHRAT JAHAN Vs. VTH A D J

JUDGEMENT

(1.) One Humayum Mirza, predecessor of the petitioner, who was plaintiff before the trial court instituted a suit, being Regular Suit No. 205 of 1982, against the opposite parties for grant of an injunction.

(2.) At the initial stage no injunction was granted and the application under Order XXXIX, Rules 1 and 2, C.P.C. preferred by the plaintiff was rejected by the trial court, against which an appeal was filed under Order XLIII, Rule (1)(r), C.P.C. The appellate court on 18.12.1982, allowed the appeal and directed the maintenance of status quo by the parties. It was further provided that the opposite parties shall not raise any constructions so as to dispossess the petitioner from over the property in question. The suit was, however, dismissed for non-prosecution on 4.5.1994. An application for restoration was preferred on 20.5.1994 which was allowed on 26.4.1995 and the suit was restored to its original number.

(3.) Sometime in November, 1996, the opposite parties started raising construction over the property in question whereupon the petitioner on 13.12.1996 made an application under Order XXXIX, Rule 2A, C.P.C. before the District Judge for the alleged violation of the injunction order. Opposite party No. 1 vide judgment and order dated 26.8.2004, rejected the said application on the ground that the suit of the petitioner already stood dismissed for non-prosecution on 4.5.1994 and upon its restoration the order of injunction did not automatically stood revived, therefore, no violation of the said order of injunction could be said to have been made as on the date when the construction started there was no injunction order.