DINESH SINGH Vs. ADDL. DISTRICT JUDGE AND ANR.

JUDGEMENT

(1.) THIS writ petition under Article 226 of the Constitution of India challenges the order passed by the revisional court dated 3rd September, 2005 whereby a revision filed by plaintiff -respondent No. 2 under Section 115 of the Code of Civil Procedure (In short C.P.C), as amended in the State of U.P., has been allowed and an application 7C moved by the plaintiff/respondent No. 2 in this writ petition, for grant of temporary injunction was also allowed and temporary injunction was granted by the revisional court till the decision of the suit.

(2.) THE brief facts leading to filing of the present writ petition are that the plaintiff/respondent No. 2 in this writ petition, filed a suit before the trial court before the Civil Judge, Senior Division, Gorakhpur being Suit No. 350 of 2004. Plaintiff filed an application under Order XXXIX, Rule 2, C.P.C, numbered as 7C for grant of temporary injunction during the pendency of the suit. The suit filed by the plaintiff -respondent No. 2 was presented before the trial court on 22nd July, 2004 and on 22nd July, 2004 the trial court passed an order of registering the suit and on application 7C filed under Order XXXIX, Rules 1 and 2 of Code of Civil Procedure read with Section 151 the trial court directed that considering the facts and circumstances of the case it is necessary to hear the defendant before passing any order on injunction application, therefore fixed 22nd July, 2004. The plaintiff aggrieved by the order dated 22nd July, 2004 whereby notice were issued by the trial court on the application 7C, filed a revision before the revisional court under Section 115 of C.P.C. The revision was heard and decided by the revisional court and revisional court by the order dated 3rd September, 2005 allowed the revision filed by the plaintiff -respondent set aside the order dated 22nd July, 2004 passed by the trial court whereby the trial court issued notices to the defendant on the application 7C and application 7C was accepted, temporary injunction prayed for is granted by the revisional court which directed that during the pendency of the suit before the trial court the defendant cannot sale the property referred in the contract to anyone other than plaintiff or his nominee. It further directed the parties to appear on 10th October, 2005. It is this order which is under challenge here in this writ petition. Learned Counsel for the petitioner has argued that in view of the amended provisions of Section 115 of the C.P.C. as amended in the State of U.P. by U.P. Act No. 14 of 2003 which are reproduced below, no revision lies against the order passed by the trial court.

(3.) LEARNED Counsel for the petitioner has submitted that in view of the decision of the Apex Court in Shiv Shakti Co -operative Housing Society v. : [2003]3SCR762 , no revision lies against the order of issuing notice on the temporary injunction application by the trial court. Learned Counsel for the petitioner further relied upon a decision in Imamuddin v. Mohd. Yusuf and Ors. , wherein this Court has held that in view of the law laid down by the Apex Court in the case of Shiv Shakti Co -operative Housing Society (supra), no revision lies against the order of issue notice by the trial court on the temporary injunction application. It will not be out of place to refer here that the amended provisions of Maharashtra Act which were under consideration in the case of Shiv Shakti Co -operative Housing Society (supra). The amendment of Code of Civil Procedure considered in the case of Shiv Shakti Co -operative Housing Society (supra) is similar to the amendment of Civil Procedure Code as amended in the State of U.P.