AB AZIZ GILKAR Vs. ALI MOHD BADAM

JUDGEMENT

(1.) IN a suit for possession and for permanent injunction pending in the Court of Munsiff Anantnag, an order came to be passed on an application for temporary injunction by the court of Munsiff Anantnag to the effect that status quo on the spot be maintained. The order of the Munsiff was passed on 15.2.77 but on 30. 4. 79 after hearing both the sides the learned Munsiff vacated the order of maintaining status quo and permitted the construction of the house on some conditions. The defendant went in appeal to the District Judge Anantnag who vide his order dt 18.6.79 set aside the order of the learned Munsiff dt 30 4. 79 and restored the order of the learned Munsiff passed earlier i.e. 15. 2. 77, Whereunder the learned Munsiff had directed the parties to maintain status quo ante on the spot. The revision has now been filed against this order of the learned Distt: Judge Anantnag.

(2.) FROM a perusal of the order under revision it appears that at the request of the parties, the learned District Judge has gone on spot and examined the position prevailing there. In the impugned older he has made a mention of this inspection and has recorded what he, saw on the spot. He has held that it was necessary for the proper disposal of the matter pending between the parties that they should continued to be directed to maintain status quo on the spot. It has been urged before me by the learned counsel for the petitioner that the learned District Judge has committed an error in going on spot for personal inspection and then not having recorded notes separately about what he saw on the spot and lastly that on the basis of his own observations he has arrived on a conclusion and disposed of the appeal which was not warranted under law. It has also been urged that the appeal itself before the District Judge would not lie as the order impugned before him and passed by the trial court was one passed in exercise of its powers under sec 151 CPC.

(3.) THE order of the learned Munsiff dt 15. 2. 77 directing the parties to maintain status quo ante in my view was not passed u/s 151 CPC but on an application by the plaintiff, the order came to be passed under Order 39 Rules 1 & 2. The objection that the order was passed u/s 151 CPC and therefore, no appeal would lie to the Distt: Judge, is therefore, over -ruled. The District Judge was competent to hear the appeal which he has done. At the request of both the parties, as mentioned in the order of the District Judge, he himself went on spot and disposed of the matter with regards the temporary injunction on the basis of what he saw on the spot. It is true that the learned District Judge has not prepared any separate notes about what he saw on the spot, but the order under revision contains all that he saw on the spot and thus, I feel that simply because the learned Distt: Judge has not kept a separate record of his observations, it could not be said that he has violated any principles of law or any particular provision of law under the C. P. C.