KASTURBA DEVI Vs. DILIP KUMAR

JUDGEMENT

(1.) RESPONDENT No. 1 alter obtaining permission for construction from the Municipal Corporation, Khandwa started the construction. The plaintiff/petitioner instituted a suit for declaration and perpetual injunction on the ground that the construction was being made in violation of the Municipal Sanction. The suit was registered as Civil Suit No. 39-A/2000. An order of status-quo was passed therein on 21-8-2000 and 28-8-2000 in respect of construction on the properly in dispute. The respondent Nos. 1 and 2 continued with the construction and completed the same. The plaintiff/petitioner submitted an application under Order 39 Rule 2a of the CPC and prayed for action against them for such breach/disobedience. This application was registered as MJC No. 5/2000. In the civil suit, an application under Order 7 Rule 11 of the CPC was filed which was allowed on 2-12-2000 rejecting thereby the plaint submitted by the plaintiff/petitioner. Aggrieved by the same, Civil Appeal No. 46-A/2000 was preferred which was allowed by the Court of Second ADJ, East Nimad, Khandwa on 11th of January, 2001. Consequently the Civil Suit No. 39-A/2000 was restored and the learned Trial Judge was directed to decide the same on merits.

(2.) IN the meantime MJC No. 5/2000 was also dismissed by the Trial Court on account of rejection of the plaint vide order dated 2-12-2000. On restoration of Civil Suit No. 39-A/2000, plaintiff/petitioner submitted an application under Section 151 of the CPC for restoration of the MJC No. 5/2000. This application was dismissed on 19-10-04 by the learned Trial Judge on the ground of limitation. Civil Misc. Appeal No. 10/04 preferred against the order dated 19-10-04 has been dismissed by the Lower Appellate Court on the ground of untenability of the appeal which has been impugned in the present writ petition.

(3.) SHRI v. Rusia, learned Counsel for the petitioner contended that the application with respect to breach of order of status quo (MJC No. 5/2000) could not have been legally dismissed merely on the ground of dismissal of civil suit. He contended that the order of learned Trial Judge dismissing the MJC No. 5/2000 is patently erroneous and illegal. He further contended that even if the Civil Misc. Appeal was not maintainable before the Lower Appellate Court, the order dated 19-10-04 being patently illegal, is liable to be set aside in exercise of power conferred under Article 227 of the Constitution of India and the same is liable to be restored to its original number.