MUNICIPAL COUNCIL BHIND Vs. SMT KALAWATI

JUDGEMENT

(1.) THIS revision petition under section 115 of the Code of Civil Procedure, 1908, has been filed against the order dated 12.5.2000 passed by second Additional District Judge, Behind, in Civil Suit No. 21 A/99. This order was passed on an application under Order 26 Rule 9 of the Code of Civil Procedure (I.A.No.17). It needs to be made clear that by the order dated 12.5.2000, other applications were also disposed, but order under challenge is only in respect of the order to the extent it relates disposal of application under Order 26 Rule 9, CPC.

(2.) WITH the consent of the parties, the petition is being finally disposed at admission stage.

(3.) IT was contended that on an application under Order 26 Rule 9, CPC, a pre emptory order of this nature could not have been passed. It was urged that the plaintiffs have brought a suit for declaration, prohibitory injunction as well as mandatory injunction and in their application for grant of temporary injunction, they have again prayed for prohibitory injunction as well as mandatory injunction and the defendant Municipal council had moved the application for appointment of commissioner to inspect the spot before disposal of plaintiffs' application for grant of temporary injunction. The application was moved so as to bring the real factual position before the Court as regards the conditions of one Khandeshwar Road and Killa Road and matters connected with the traffic situation and also for ascertaining the actual position near the Ghats etc. In this background, before disposing application for temporary injunction it self, such an order could not have been passed which, in effect, decided the petition for grant of temporary injunction and to some extent granted relief which could have ultimately been granted at the time of disposal of suit on merits.