SYED AHMAD Vs. HEBARLOW

JUDGEMENT

(1.) This is an application in revision asking us to set aside an order of the Subordinate Judge of Etawah by which he discharged an order of injunction issued by the lower Court. The applicant is one Syed Ahmad, who was a, voter in the Chauni ward of the Etawah Municipality. A Municipal election was pending, and as Syed Ahmad had a vote in another ward in the constituency, and as he wished to stand as a candidate for election to the Board in that ward, he-applied that the entry of his name in the Chauni ward register should be struck out and entered in that of the other ward. His name was struck off the register of the Chauni ward. Objection however was taken to his name being entered upon the electoral roll of the other ward. The objection was heard by a properly constituted revising committee, which upheld the objection. He then applied that his name should be entered on his original electoral roll. This application however was rejected. An appeal was preferred before the District Magistrate who dismissed the appeal this appeal was-final under the rules. Syed Ahmad then, filed a suit claiming an injunction to restrain the District Magistrate, the returning officer, and the Municipal Board from proceeding with the election, and for &. mandatory injunction directing that his name should be entered upon the electoral roll of Chauni. On filing the suit Syod Ahmad applied to the Munsif for an interim injunction in the terms of his-plaint. The Munsif, after notice to the parties, granted the injunction. This was on 14 November last. Nominations were to take place on 16 November. The defendants had therefore not much time to consider their position. If the interim injunction stood, nominations; would not take place on the 16th, and the position as regards the election itself would, in one view of the Municipal Election Rules, have become difficult.

(2.) The injunction itself was served upon the defendants on the 15th. On the 16th the defendants lodged an appeal in the Court of the Subordinate Judge, and with their appeal made an ex parte application for the stay of the injunction. Under Order 39, Rule 3, the learned Subordinate-Judge made an order staying the operation of the injunction until such time as-he heard the appeal. The appeal itself was heard in due course, and the learned, Subordinate Judge allowed the appeal and. set aside the interim injunction. From, that order Syed Ahmad proceeded by way of an application in revision to the High Court. The defendants applied to the Chief Justice asking that the hearing of the application in revision should be expedited, and the two parties agreed that, the hearing of the application should be treated as the trial of the action itself.

(3.) A preliminary point has been taken by Mr. Iqbal Ahmad, who appears on behalf of one of the respondents, that no revision lies. We are satisfied that this is a sound objection. The application of course is under Section 115, Civil P.C., It cannot be said that the appellate Court whose order we are asked to revise has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested. But Mr. Khwaja, on behalf of the applicant, has argued that we are justified in revising the order because, he alleges, the subordinate Court has acted in the exorcise of its jurisdiction illegally or with material irregularity. The grounds of his application and his whole argument have been based upon the alleged irregularity of the stay order of the Subordinate Judge. He complains that it was wholly irregular for the learned Subordinate Judge to pass such an order ex parte. It is clear to us however that Order 39, Rule 3 applies to the |very situation that arose on 15 November. If on the morning of the 16 notice had to be served upon Syed Ahmad, the whole purpose of the application for the stay would have been defeated, and therefore, provided the learned Judge thought that a case had been made out for a stay, lie was justified in passing the order ex parte. We have not been referred to any case which decides that a mandatory injunction of this sort cannot be stayed by order of a superior Court. Part of the relief claimed in the action was that the nomination of candidates should be restrained by injunction. As far as this particular relief was concerned, the interim order, under the circumstances of the case, really decided the action. We think that the learned Judge was justified in ordering a stay so that, as far as that issue was concerned, it might remain open until ho himself had heard the appeal. But even assuming that there was irregularity in the making of that order, it is clear that an interlocutory order cannot be revised. The order that the applicant wishes us to revise is the order in appeal. Mr. Khwaja however says that the order in appeal confirms the interlocutory order. It is quite true that the learned Judge has said in his judgment that he confirms the stay order. However in fact, he did nothing of the sort. He passed a totally independent order based upon the merits, an order which dissolved the injunction. The stay order merely, operated to prevent for the time being the injunction taking effect. When the injunction itself was dissolved, the stay order was completely vacated. Nothing further can be urged as a ground of material irregularity or illegality in this case. We are satisfied that the learned Judge's order cannot be interfered with by us in this application. The application in revision is therefore dismissed.