(1.) In title Suit No. 134 of 1970 pending in the Court of Munsif II at Monghyr, an order was made on 12-12-1970 restraining defendant No. 1 from making any further construction in his house and, not only that, asking him to demolish the disputed construction made after an order of an interim injunction was passed by the trial court. The said defendant filed Miscellaneous Appeal No. 7 of 1971 in the court of the District Judge of Monghyr. This appeal was filed on 27-1-1971. The limitation for filing the appeal expired on 22-1-1971. An application under Section 5 of the Limitation Act was filed for condoning the delay. But in that application only 2 days" delay was explained in respect of the 25th and 26th of January but there was no explanation to explain the delay of 3 days from 22nd to 24th January, 1971. The learned District Judge rightly did not condone the delay and rejected the application under Section 5 of the Limitation Act. He rightly dismissed the appeal as having been filed out of tune. In this civil revision learned Counsel for the petitioner could not contend and, in my opinion, rightly that the appeal was not filed out of time. He, however, tried to make out new grounds on the footing of the statements made in the civil revision application for condoning the delay on the basis of the allegedly sufficient cause for 22nd, 23rd and 24th January also. In my opinion, the said statement of fact and new ground sought to be made in the civil revision application are an afterthought and cannot be entertained in this civil revision application.
(2.) Learned Counsel for the petitioner then submitted that the order of the trial court is without jurisdiction and since no appeal lay to this Court (either the first or the second appeal), this Court is competent to revise the order of the trial court. Learned Counsel for the plaintiff opposite party combated this position of law. In my opinion, it is well settled that if no appeal lies to this Court either directly or through the lower appellate court, meaning thereby that no second appeal lies, then this Court is competent to revise the order of the trial court provided there is an error of jurisdiction. Ordinarily and generally, this Court would be reluctant to interfere with the order of the trial court if the remedy of appeal has not been availed or availed out of time. This Court will generally refuse to exercise its discretion. But there may be cases where this Court may feel that the order of the trial court is such that even if the remedy of appeal to the lower appellate court has not been availed of, the order should be interfered with in exercise of revisional powers of this Court. In such a situation, I think, it is beyond debate now that the; High Court will have power to do so and the contention to the contrary put forward by the learned counsel for the, opposite party is not correct.
(3.) After hearing the learned Counsel for the parties and after perusal of the order of the learned Mun-sif, I have come to the conclusion that there is no error in regard to that part of the order by which he has issued interim injunction restraining defendant No. 1 from making any further construction, that order, under no circumstances, is fit to be interfered with in this Civil Revision.