LAXMI DEVI Vs. DULA RAM

JUDGEMENT

(1.) This is a defendant's revision against the order of learned Civil Judge, Parbatsar dt. 9-5-91 whereby he has affirmed the order dt. 20-10-87 passed by the learned Munsif and Judl. Magistrate, Makrana in the matter of O. 39, Rule 4 read with S.151, CPC.

(2.) In brief the facts are that the plaintiff-nonpetitioner filed a suit for declaration and permanent injunction on 9-2-87 in the court of Munsif and Judicial Magistrate, Makrana with the allegation that quarry No. 142/3 belongs to his father late Arjun Rao, who took it from Government on lease. The petitioner was minor at the time of death of his father and his elder brother was managing the quarry who got the quarry mutated in his name, now deceased. On 1-2-74 he transferred the quarry in the name of his wife. The petitioner requested for partition of his half share, but criminal proceedings u/S.107, Cr.P.C. were initiated. An application for temporary injunction was also filed and in alternative it was prayed that in case no injunction is issued receiver may be appointed for at least half share notice was issued on 19-2-87, one Dilip Singh, advocate appeared on behalf of the petitioner and he sought time to file written statement and the reply. But on 9-7-87, the advocate of the defendant-petitioner pleaded no instructions on behalf of the defendant. On 15-7-87, the learned trial Court ordered that till the disposal of the suit the defendants are restrained from interfering in the excavation work of the plaintiff. On 23-7-87, the defendant-petitioner moved an application under O.39, R.4 read with S.151, C.P.C. along with some documents alleging that Laxmi Devi was seriously ill on 9-7-87 and an opportunity may be given to them as they could not attend the court and the order be set aside. It was submitted that the lease was renewed in the name of one Birdha Ram up to the year 1969 but on 13-7-79 this quarry was declared as Khalsa and from the year 1972-73, it remained unoccupied. It was also alleged that quarry No. 142/3 belongs to defendant. On 1-2-74 a lease was granted in her favour by the mining department. It was also alleged that the plaintiff is not at all in possession of the quarry and he is not entitled to excavate half of it. It was prayed that in case work of excavation to the third party is allowed to carry out the defendant will suffer great loss. The learned Judicial Magistrate after hearing both the parties rejected the application on 20-10-87. An appeal was preferred but the same was also dismissed on 9-5-91. Hence this revision.

(3.) I have heard learned counsel for the parties, and perused the case law as well as the impugned orders.