DEV DUTT SHARMA Vs. NASIB KUMAR

JUDGEMENT

(1.) Petitioner -plaintiff is aggrieved by the order dated 11 th June, 2009 of the learned Additional District Judge, by which accepting the appeal of respondents -defendants against the order dated 12th September, 2008, passed on an application, under Order 39 Rules 1 and 2 of the Code of Civil Procedure, it has been held that the said application had become in -fructuous, on account of the facts narrated in a subsequent application of the plaintiff -petitioner, under Section 94(e), read with Section 151 of the Code of Civil Procedure.

(2.) PETITIONER , claiming himself to be a tenant in a shop, filed a suit for permanent prohibitory injunction, restraining the defendants -respondents, who are alleged to be landlords, from ousting him from the shop, except by due process of law. He also filed an application, under Order 39 Rules 1 and 2 of the Code of Civil Procedure, on the very day of the institution of the suit. An ex -parte order was passed on that application, on 14th February, 2007. Notices were issued to the defendants -respondents for 27th February, 2007. Respondents -defendants did not put in appearance and ex -parte order dated 14th February, 2007 was made absolute.

(3.) THEREAFTER , application, under Order 39 Rules 1 and 2 of the Code of Civil Procedure, was heard and decided by the trial Court, afresh, vide order dated 12th September, 2008, copy Annexure P -10. Application was allowed, which meant that order passed on the application, under Section 94(e) of the Code of Civil Procedure, copy Annexure P -8, stood revived. Order of the Sub Judge, Annexure P -10, was challenged by filing an appeal before the learned District Judge. Appeal was assigned to the Additional District Judge, Fast Track Court, who vide impugned order held that the application, under Order 39 Rules 1 and 2 of the Code of Civil Procedure, had become in -fructuous, when according to the allegation of the petitioner made in the application, under Section 94(e) of the Code of Civil Procedure, he had been ousted, prior to the passing of order Annexure P -10.