BASTI CHAND Vs. DUKHRAJ

JUDGEMENT

(1.) The tenant has filed this revision petition under Sec. 115, C.P.C. against the order of the Addl. District Judge No. 2 Jodhpur dated May 10, 1995 by which the appeal filed by the non-petitioner landlord was allowed.

(2.) The brief facts to be mentioned for the disposal of this revision petition are that the non-petitioner landlord has got a house situated in Singhpole and excepting some portion (one room, one saal, one bath-room etc.) The rest of the house was let-out to the petitioner. It is alleged that some household articles of the landlord non-petitioner were lying in the above portion. The landlord non-petitioner wanted a right to enter into the above house to look-after the household articles lying there. But the petitioner tenant objected to that. The non-petitioner plaintiff filed a suit against the petitioner defendant seeking permanent injunction to the effect that he may be allowed to enter into the disputed house and further that the defendant may be restrained from putting any objection in his entry to the said house. Alongwith the suit an application under Order 39 Rules 1 & 2 C.P.C. also moved seeking temporary injunction for allowing the plaintiff an entry into the disputed house to go to the portion in his possession during the pendency of the suit. The application was contested by the petitioner defendant and the same was dismissed on Sept. 22, 1989. An appeal was filed by the plaintiff against the above order. The appeal was also dismissed. Against the dismissal of the appellate order a revision was filed by the plaintiff respondent in this Court but that too was dismissed and the order of the trial Court as well as the appellate Court was maintained. It appears that thereafter another application was moved by the plaintiff respondent under Order 39 Rules 1 & 2 C.P.C. on the ground that the circumstances had now changed. It was alleged that the petitioner defendant has shifted to his own house and has put a lock on the disputed house. The plaintiff, therefore, in the changed circumstances prayed his right of entry into the said house. This application was rejected by the trial Court on the ground that the relief sought by the plaintiff respondent could only be granted after evidence. It may also be mentioned that the trial Court while rejecting the earlier application for the grant of temporary injunction held that respondent may enter into the disputed house with the concent of the petitioner. Against the order of dismissal the respondent plaintiff preferred an appeal and the learned appellate Judge by the impugned order set aside the order of the trial Court and granted the temporary injunction in mandatory form.

(3.) I have heard learned counsel for the either side. It has been contended by the learned counsel for the petitioner that by granting temporary injunction in the mandatory form the learned appellate Court has committed a material irregularity and illegality and acted without jurisdiction. The trial Court on discussion found no prima facie case entitling the plaintiff respondent for temporary injunction. The trial Court as regards the changed circumstances recorded the opinion that this disputed question of fact could only be disposed of after evidence. The appellate Gout was, therefore, not justified in reversing the above finding. It may also be mentioned that in the above suit, issues have already been framed and this disputed question of fact could be decided after evidence of both the parties. It is a settled law that ordinarily the discretionary order, like on order passed on an application under 0.39, R. 1 C.P.C. must not lightly be interfered by the appellate Court. Particularly when the fact was in dispute, whether the defendant petitioner has shifted to another house or not. The trial Court in this regard observed that this disputed question of fact can be decided only after the evidence of the parties. The order passed by the trial Court did not warrant any interference by the appellate Court.