CHOTH MAL Vs. SEDU RAM & OTHERS

JUDGEMENT

(1.) The petitioner is aggrieved by order dated 4.3.2013 passed by Addl. Civil Judge (Jr. Div.) and Metropolitan Magistrate No.25, Jaipur Metropolitan, Jaipur, whereby the learned Magistrate has allowed an application filed under Section 151 CPC, and has directed that the order passed on the application under Order 39, Rule 2A CPC shall be kept in abeyance till the application filed by the respondent-defendants under Order 9, Rule 13 CPC is decided.

(2.) The brief facts of the case are that the petitioner-plaintiff had filed a suit for perpetual injunction along with an application under Order 39, Rules 1 and 2 CPC. By order dated 17.10.2006 on the basis of compromise entered between the parties, the learned trial court had directed the parties to maintain status quo. Subsequently, the petitioner filed an application under Order 39, Rule 2A CPC, wherein he claimed that the respondent-defendants had violated the status quo order, and were trying to raise construction on the gali in dispute. By order dated 11.1.2010 the said application was accepted, and an ex-parte order was passed. Subsequently when the respondent-defendants came to know about the existence of the order dated 11.1.2010, they filed an application under Order 9, Rule 13 CPC for setting aside the ex-parte order dated 11.1.2010. They also moved an application under Section 151 CPC for keeping the order dated 11.1.2010 in abeyance till their application under Order 9, Rule 13 CPC is finally decided. By order dated 4.3.2013, the learned Magistrate accepted the said application, and directed that the order dated 11.1.2010 shall be kept in abeyance till the application under Order 9, Rule 13 CPC is finally decided by him. Hence, this petition before this Court.

(3.) Mr. R.M. Bairwa, the learned counsel for the petitioner has vehemently contended that in case the respondent-defendants were aggrieved by order dated 11.1.2010, they should have filed an appeal against the said order. They could not have filed an application under Section 151 CPC for keeping the said order in abeyance. The learned counsel has relied on the case of Food Corporation of India v. Sukh Deo Prasad, 2009 5 SCC 665, in order to contend that an application under Order 39, Rule 2A CPC is maintainable only when there is a disobedience of an injunction granted, or other order made under Rule 1 or 2 of Order 39, or a breach of any of the terms on which the injunction was granted. According to him, since the injunction order was violated by the respondent-defendants, the application filed under Order 39, Rule 2A CPC was maintainable. Hence, the learned Magistrate was not justified in keeping the order 11.1.2010 in abeyance.