BALMUKAND Vs. STATE OF M P ANR

JUDGEMENT

(1.) This is the plaintiff-applicant's revision against the lower appellate Court's order directed the trial Court to decide afresh the plaintiff's application under Order 39 Rule 4 C. P. C. after duly hearing the other side.

(2.) The present applicant-plaintiff had filed a suit against the State Government (present non-applicant No. 1) in the trial Court for declaration of his right and title as Bhumiswami to certain agricultural land. The non-applicant No. 2 Rajmal was allowed to be joined in the suit as the defendant No. 2 on his application under Order 1 Rule 10 C. P. C. in view of his alleged right of easement in the land in question. During the pendency of the suit, the present applicant-plaintiff had filed an application under Order 39 Rules 1 and 2 C.P.C. for restraining the defendant No. 1 State from interfering in the plaintiff's possession till the disposal of the suit, plaintiff's possession of the land in dispute for the period from 1972 to 1976 was stated to be in pursuance of the annual auction of the suit land viz. the Beed ?chM?. The trial court granted the termporary injunction as prayed for on the condition that the plaintiff shall deposit auction money with the defendant No. 1 State for the period from 1976 and onwards, failing which, the injunction Order shall stand infructuous and ineffective. It was further directed that in compliance of this Order, all arrears of auction money will have to be deposited by the applicant-plaintiff within a month from the date of the passing of Order of temporary injunction (i. e. 21-8-1978). On 2-9-1978, the present applicant-plaintiff filed another application in the trial Court for modifying the conditions in the trial court's earlier Order of temporary injunction dated 21-8-1978 to the extent that instead of depositing the auction money in cash, he may be permitted to furnish security for the said amount. This application was al-lowed by the trial Court without hearing the other side viz., the defendant-State. Later, on 24-10-1979, the State Government filed the petition that the trial Court's initial Order of temporary injunction had become inoperative and ineffective due to the plaintiff's failure to comply with the condition viz. deposit of the auction money for the period from 1976 and onwards, within the stipulated time. This application was dismissed by the trial Court. The State did not prefer appeal against this. On the contrary, the defendant No. 2 Rajmal preferred the appeal against the trial Court's said Order dated 30-10-1979 on the ground that the Order of temporary injunction was wrongly modified in illegal manner without affording the opportunity of hearing to the other side. The appeal was vehemently resisted by the present plaintiff, firstly on the ground that the appeal was not tenable and, secondly on the ground that the defendant No. 2 Rajmal had no locus standi to file the appeal.

(3.) The lower appellate Court negatived both the objections of the respondent- plaintiff. It was held that trial Court's subsequent Order modifying the conditions of the initial Order of temporary injunction was covered under Order 39, Rule 4 CPC, and as per Order 43 Rule 1 CPC, such an Order was made appealable. The lower appellate Court, further, held that since the Order modifying the initial Order of temporary injunction had been passed by the trial Court without hearing the opposite side (which obviously included the defendant No. 2 Rajmal also) the trial Court had acted erroneously. It was, hence, implied in the lower appellate Court's Order that Rajmal being one of the opposite parties, was naturally entitled to file the appeal. The lower appellate Court, consequently allowing the appeal and setting aside the trial Courts' Order dated 2-9-1978, directed the trial Court to decide the plaintiff's application afresh in the matter of his claim for modifying the conditions of the Order of injunction after affording due opportunities of hearing to the other side viz., the de- fendants. Now, it is against this Order that the present revision has been filed by the plaintiff.