BEGUM BIBI Vs. ROHIT MISHRA AND ORS.

JUDGEMENT

(1.) SUIT for permanent prohibitory injunction captioned "Rohit Mishra and Anr. v. Nishat Khan alias Pappu and others" has been filed, as such, is pending before the Court of 1st Civil Subordinate Judge (Municipal Magistrate), Jammu. Alongside suit, an application for grant of temporary injunction has been filed. Vide order dated 26th April, 2008, the learned trial Court has directed the non -applicants (defendants) not to interfere with the possession of the plaintiffs over the suit land i.e. 9 kanals and 6 marlas covered by Survey No. 2889 situated at Village Kot., Tehsil and District Jammu. After objections were filed, the learned trial Court vide its order dated 17.04.2009, made the restraint order absolute. Dissatisfied therewith, the petitioners (defendants) filed the Civil 1st Appeal before the Court of learned District Judge, Jammu which had assigned the same for disposal to learned 1st Additional District Judge, Jammu. Same stands dismissed vide detailed order dated 09.11.2009.

(2.) EARLIER against such orders, remedy of revision in terms of Section 115 CPC was available but after amendment, proviso to Section 115 CPC provides that revision will lie only against the order which has the effect of termination of the suit or other proceedings or against the orders which are final or the orders which if would have been passed in favour of the aggrieved party, would have resulted in termination of the suit proceedings. The Hon'ble Apex Court in the judgment rendered in the case of Surya Dev Rai and others, reported as : (2003) 6 SCC 675, has held that even against the judgment passed in Miscellaneous Appeal arising out of the order of injunction, revision will not lie. It is in the same background, the petitioners (defendants) have filed the instant writ petition. Such petitions are to be entertained in exceptional cases so as to avoid any effort of negating the effect of amendment in Section 115 CPC and in turn to avoid unnecessary protraction in the suit proceedings.

(3.) THE short point which was to be considered by the trial Court as well as the appellate Court is as to whether the plaintiffs had any prima facie case so as to issue the order of injunction and to maintain the same; the answer has to be in affirmative.