JYOTI PARKASH Vs. KAMAL KANT

JUDGEMENT

(1.) The following interesting question of law arises for determination in this petition:

(2.) The facts necessary for decision of this case are that deceased Kishan Chand filed a suit, in January 2006, against Jyoti Parkash (the present Petitioner), hereinafter referred to as the Defendant. The suit was filed for declaration that the Plaintiff is owner in possession of the land. During the pendency of the suit Kishan Chand died on 4th October, 2008. Thereafter, his son Kamal Kant filed an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure (for short 'the Code'), praying that the Defendant be restrained from raising any construction over the suit land. The Defendant was proceeded ex-parte and an order was passed on 7th November, 2009, whereby he was directed to maintain status quo qua the suit land during the pendency of the suit. It appears that Kamal Kant had also filed an application under Order 22 Rules 3 & 9 of the Code for setting aside abatement and for bringing him and others on record as the legal representatives of Kishan Chand but this application had not been decided till the order of status quo was passed.

(3.) Thereafter, Defendant Jyoti Parkash moved an application under Order 39 Rule 4 of the Code praying that the order of status quo be vacated since the same had been obtained by misstating the facts. It was also pleaded that the Defendant had wrongly been proceeded ex-parte. However, the main ground raised was that since the suit had abated and the application for abatement had not been decided, there was no suit pending and as such no order could have been passed under Order 39 Rules 1 & 2 of the Code.