NAGAR MAHAPALIKA LUCKNOW Vs. VED PRAKASH

JUDGEMENT

(1.) THIS revision arises in the following circumstances. Ved Prakash, Plaintiff-opposite Party, filed a suit against the Nagar Mahapalika Lucknow, the defendant-applicant for a permanent injunction restraining the Nagar Mahapalika from removing the stall constructed by him on the plot of land which he alleged to have obtained on rent from the Nagar Mahapalika. The plaintiff also obtained an interim order against the Nagar Mahapalika on 14th May, 1971 for maintaining status quo. That order was confirmed on 30th November, 1971. The Nagar Mahapalika filed its written statement in the suit on 5th February, 1972. The suit was however dismissed for default on 27th April, 1973. But on the motion of the plaintiff the order of dismissal was set aside and the suit was restored to its original number on the same date namely, 27th. April, 1973. While the suit was still pending the Nagar Mahapalika removed the stall from the land in question on 7th October 1974 and dispossessed the plaintiff from that land. The plaintiff then moved an application before the trial court on 19th October 1974 for a direction to the Magar Mahapalika to restore the stall and the possession of the land to him so that he may do his business and earn his livelihood. This application was moved under Section 151 of the Code of Civil Procedure. Notice was issued to the defendant but no objection was filed by it. The learned Munsif relying on the uncontroverted affidavit of the plaintiff held that the defendant had disobeyed the court's order; hence the plaintiff was entitled to get back the possession. He therefore ordered that the defendant should restore the possession to the plaintiff of the disputed plot and the stall which had been removed illegally. Against that decision the Nagar Mahapalika filed a revision in the court of the District Judge Lucknow. That revision was dismissed by the First Additional District Judge, Lucknow. Aggrieved, the Nagar Mahapalika has preferred this revision.

(2.) FOR the applicant Nagar Mahalika it was urged that on dismissal of the suit for default on 27th April, 1973, the temporary injunction did not survive. Hence the defendant had not committed any breach of the injunction order. Consequently the tidal Court had no jurisdiction to direct the defendant under Section 151 of the Code of the Civil Procedure to restore the possession of the land in question and the stall. For the plaintiff-opposite party relying on Hari Nandan v. S.N. Pandita, (AIR 1975 All 48) it- was urged that the trial court could pass an order under Section 151 of the Code of Civil Procedure to undo the wrong done to the plaintiff in whose favour the temporary injunction order had been issued.

(3.) AS long ago as 1887 a question of similar nature arose for consideration before this Court in Chunni Kuar v. Dwarka Prasad, (1887 All WN 297). It was observed therein that an attachment before judgment like a temporary injunction becomes functus officio as soon as the suit terminates. Again, a question pertaining to attachment before judgment came up for consideration before this Court in Ram Chand v. Pitam Mal, ((1888) ILR 10 All 506). Relying on Chinni Kuar's case (supra) that principle was reiterated with approval. The other High Courts also considered this question in a number of cases. Finally, the question was raised in Abdul Hamid v. Karim Bux before this Court as to whether on the dismissal of a suit in default in attachment before judgment automatically lapsed and a fresh attachment was necessary on the restoration of the suit, or whether on the restoration of the suit the attachment previously made is revived or is survived. This question was referred to a Full Bench of the Court. The majority view was that on the dismissal of suit in default the attachment before judgment automatically ceases and a fresh attachment is necessary on the restoration of the suit (see Abdul Hamid v. Karim Bux, 1972 All WR (HC) 717 = (AIR 1973 All 67) (FB)). The Full Bench quoted with approval a Full Bench decision of Mysore High Court in Gangappa v. Boregowda, (AIR 1955 Mys 91) (FB) wherein it was laid down that: