MANGILAL Vs. KAILASH CHANDRA SHARMA

JUDGEMENT

(1.) THIS is a plaintiff's revision against the order of the Additional District Judge No. 5, Jaipur City Jaipur, dated 13 -10 -1981 upholding the order of the learned Munsiff Jaipur East, Jaipur dated 22 -9 -1981 dismissing the plaintiff's -application under Order 39 Rule 1 and 2 C.P.C.

(2.) ONE Govind Lal obtained an ex parte decree for evidence against Kailash Chand defendant -non -petitioner. Kailash Chand defendant non -petitioner filed an appeal against the decree for eviction and obtained a stay order from the appellate court on 7 -9 -1978, which was communicated to the trial court on 16 -9 -1978. Inspite of the above stay order, it appears that Govind Lal obtained possession of the suit shop in execution of the decree on 16 -1 -1979. Kailash Chand filed an application for restitution of possession. But the same was disallowed by the executing court. Kailash Chand, thereafter, filed a revision in this Court and the revision was contested by Govind Lal. This Court, however, on 6 -5 -1981 allowed the revision taking the view that after the communication of stay order passed by the appellate court, the trial court had no jurisdiction to deliver possession to Govind Lal in execution of the decree. It was further observed that the petitioner Kailash Chand was entitled to restoration of possession Under Section 151 C.P.C. as it was a mistake of the court in giving possession to Govind Lal. In the mean time, during the pendency of the revision, Govind Lal let out the suit shop to the plaintiff petitioner on 24 -5 -79. Kailash Chand defendant -non -petitioner wanted to take possession in pursuance to the order of the High Court dated 6 -5 -81. The petitioner Mangilal filed the present suit for injunction restraining the defendant Kailash Chand from taking over the possession of the suit shop and an application under Order 39 Rule 1 and 2 C.P.C. Both the lower courts dismissed the application for temporary injunction filed by the petitioner. In these circumstances, the plaintiff Mangilal has filed this revision.

(3.) IT is also argued that though the defendant non -petitioner had not filed any reply, the lower courts took into consideration the facts which were not supported by any document placed on record.