PRATAP MISTRY Vs. SITA RAM MISTRY AND ANR.

JUDGEMENT

(1.) HEARD Mr. Ajay Kumar Sharma, learned counsel appearing on behalf of the petitioners. This application under Article 227 of the Constitution of India is directed against the order dated 5.10.2010 passed by the learned Munsif 3rd, Gaya in Misc. Case No. 33 of 2004, whereby the application filed on behalf of the plaintiff -petitioners objecting to the continuation of the proceedings in miscellaneous case arising from an application filed under Order 39 Rule 2A of the Code of Civil Procedure (hereinafter referred to as 'the Code') has been rejected.

(2.) THE facts of the matter in brief is that the petitioners had filed a title suit bearing Title Suit No. 16 of 1999 seeking declaration of title as also seeking declaration that the judgment and decree passed in Title Suit No. 63 of 1963 has been obtained by fraud and thus is nullity. The learned trial court upon consideration of the relief prayed in the title suit as also upon hearing the parties by order dated 22.9.2000 was pleased to hold the suit not maintainable as regarding relief no. 3 while holding the suit maintainable as against the other reliefs. Civil revision applications were filed by both the parties, i.e. the plaintiffs and the defendants: The plaintiff being aggrieved by order holding the suit not maintainable as against relief nos. 1 and 2, moved this Court by filing C.R. No. 2362 of 2000 and at the same time the defendants also filed civil revision application being aggrieved by the other part of the order holding the suit maintainable as against the relief no. 3 which gave rise to C.R. No. 177 of 2001. Both the civil revision applications aforesaid were admitted by order dated 10.10.2001 and rule was made returnable within three months. However, the proceedings before the learned court below were not stayed. As the proceedings continued, the learned trial court by order dated 8.4.2003 on an application filed by the defendants issued an order of injunction restraining the plaintiff -petitioners from interfering with the possession of the defendants -over the suit land. The copy of the order is placed at Annexure -1 of this application. The defendants charging the plaintiff -petitioners for violating the order dated 8.4.2003 filed an application under Order 39 Rule 2A of the Code giving rise to Misc. Case No. 33 of 2004. While the suit proceedings as well as the miscellaneous case remained pending adjudication before the court below, the civil revision applications were taken up for consideration at its hearing stage and a Bench of this Court by judgment and order dated 2.4.2010 while allowing C.R. No. 177 of 2001 preferred by the defendant -respondents, dismissed the civil revision application of the petitioners bearing C.R. No. 2362 of 2000 and as a consequence whereof Title Suit No. 16 of 1999 itself was dismissed.

(3.) MR . Ajay Kumar Sharma, learned counsel appearing on behalf of the petitioners having argued at length on the issue has submitted that upon dismissal of the suit proceedings under the orders passed in the civil revision applications preferred by the plaintiffs and defendants, copy whereof is placed at Annexure -5 the interim order of injunction dated 8.4.2003 merged in the order of dismissal and consequent whereupon no justification lay for continuation of the miscellaneous case.