REBOTIRAY Vs. SASHI KANTA BUDHIA

JUDGEMENT

(1.) The respondent herein instituted, as plaintiff, Title Suit No. 07 of 2001, in the Court of Civil Judge (Sr. Dim), Bongaigaon, seeking inter alia, a decree of declaration of his rights, title, interest and khas possession over the suit land and permanent injunction. On an application made by the plaintiff under Order XXXIX Rules 1 and 2 of the Code of Civil. Procedure (hereinafter referred to as 'the Code') read with Section 151 thereof, a temporary injunction was granted in favour of the plaintiff-respondent. In course of time, the petitioner herein appeared, as defendant, in the suit aforementioned and contested the same by filing written statement. When the suit was pending for hearing, the same was dismissed for default, on 11.11.2005, as the petitioner was found absent without taking any steps. Thereafter, a petition was filed by the plaintiff under Order IX Rule 9 read with Section 151 of the Code seeking restoration of the suit on the ground that his counsel had incorrectly entered into his diary the date of hearing of the suit as 11.12.2005 instead of 11.11.2005 and as his counsel was required to be away from Bongaigaon, he filed an application, on 06.12.2005, seeking adjournment of the suit (which, according to the impression of the plaintiffs counsel, stood fixed on 11.12.2005); but on 22.12.2005, when the plaintiff made an inquiry about his suit, he came to know that the suit already stood dis- missed for default as far back as on 11.11.2005. The absence of the plaintiff and his counsel, on 11.11.2005, was, thus, according to the plaintiff, inadvertent and bona fide. This application for restoration of the suit gave rise to Misc. (J) Case No. 84/2005. This application for restoration was also accompanied by a petition made under Section 5 of the Limitation Act seeking condonation of delay of eleven days in making the application under Order IX Rule 9. The learned trial Court, then, passed an order, on 22.12.2005, directing notices to be issued to the defendant-petitioner on the application seeking condonation of delay and also on the application for restoration of the suit fixing 25.12.2006 for service report. As no service report was received in respect of the notices issued in terms of the order, dated 22.12.2005, aforementioned, the learned trial Court passed an order, dated 25.01.2006, fixing, once again, Misc. (J) Case No. 84/2005 aforementioned, on 15.02.2006, for service report. However, on 17.01.2006, the plaintiff filed an application under Order XXXIX Rules 1 and 2 of the Code read with Section 151 thereof alleging, inter alia, that taking advantage of the dismissal of the suit and also of the fact that the petitioner resides, at Siliguri, for his business purposes, the defendant had started construction over the suit land, which was going on in full swing; the plaintiff accordingly sought for appropriate order (s) of temporary injunction pending disposal of his application for restoration of the suit made under Order IX Rule 9 of the Code. This application for temporary injunction came to be registered as Misc. (J) Case No. 05/2006 and the learned trial Court, on 17.01.2006 itself, passed an order directing notice to be issued to the defendant to show cause as to why temporary injunction, as had been sought for, shall not be granted, the notice being returnable on 25.01.2006. As the notice was returned without being served and the defendant was also absent on 25.01.2006, the learned trial Court passed an order, on 25.01.2006, directly status quo to be maintained in respect of the construction over the suit land as on 25.01.2006 and further directed a notice to be issued to the defendant to show cause as to why this order of restraint be not made absolute. Feeling aggrieved by the order, dated 25.01.2006, aforementioned, whereby the defendant was directed to maintain status quo as indicated hereinabove, the defendant has, now, impugned the same in this writ petition made under Article 227 of the Constitution of India.

(2.) I have heard Mr. B.R. Dey, learned Senior counsel, appearing on behalf of the defendant-petitioner.

(3.) Challenging the impugned order, dated 25.01.2006, aforementioned, Mr. Dey has submitted that an order directing the defendant to maintain status quo is nothing, but a direction in another form of temporary injunction and an order of temporary injunction, contends Mr. Dey, can be passed only when the conditions prescribed under Order XXXIX Rules 1 and 2 of the Code are satisfied.