PRABHU NARAIN KHATI Vs. DAULAT RAM VERMA

JUDGEMENT

(1.) THIS is a revision petition against the order dated 11. 2. 1987 passed by the learned Additional Munsiff and Judicial Magistrate, Jaipur District, Jaipur in Civil Misc. Case No. 24/87 whereby he allowed the application of the non-petitioner for issue of injunction.

(2.) BRIEFLY stated the facts of the case are that the non-petitioner tenant filed a suit on 2. 2. 1987 for issue of perpetual injunction with the allegation that the disputed shop was leased out to him on Rs. 40/- per month and that the shop remained closed in the months of September and October, 1986 on account of personal reasons. On 3. 11. 1986 when he went to the shop, he found that the petitioners put their lock on the shop. Thereafter he met the petitioner No. 1 who assured him to open the lock, but did not remove the lock, Alongwith the suit an application under Order 39 Rule 2 read with Sec. 151 C. P. C. was also filed praying that an injunction in mandatory form may be issued against the petitioners to remove the lock put on the shop illegally. The petitioners submitted their reply to the said application, in which it was alleged that the disputed shop was leased on at Rs. 80/- p. m. and that the non-petitioner had also not paid the rent since some time. It was further stated therein that the non-petitioner had no business in the shop and when the petitioner No, 1 demanded rent from the petitioner, he handed over possession of the shop to him and took away some goods lying in the shop, but receipt of the goods was not allowed to be taken as the rent was still due and it is further stated that the non-petitioner stated that he would remove the rest of the goods after making payment of arrears of rent.

(3.) MY attention has been drawn to the case of Minerva Siksha Samiti vs. Smt. Mithilesh Kumari (1 ). This was a case in which the application in the trial court was moved only under Sec. 151 C. P. C. for grant of mandatory injunction, it was observed by this court in the above authority that "ordinarily under Order 39 R. 1. and 2 C. P. C. a mandatory injunction cannot be issued. The court in its powers under 0. 39 Rules 1 and 2 C. P. C. maintain status - quo as it existed on the date of the suit and hence I am of the view that the petitioner was right in invoking the inherent powers under Sec. 151 C. P. C. to obtain the mandatory injunction sought by him in his application, dated 2. 7. 1984. Therefore, the impugned order was not appellable, but it could be challenged by way of filing revision petition under Sec. 115 C. P. C. . "