JUDGMENT N.K. Mehrotra, J.
1. This is a Revision under Section 115 of the Code of Civil Procedure against the order dated 14.8.2003, passed by the Civil Judge (Senior Division), Malihabad in Regular Suit No. 320 of 2003, Guru Dutt v. Anuj Khatri and Anr., by which the learned trial court has issued notice against the opposite parties on application for ad interim injunction under Order XXXIX Rules 1 and 2, C.P.C.
2. The brief facts of the case are that the defendant opposite party No. 2 is a registered Cooperative Housing Society and the object of the society is to acquire land and establish colony for its members known as Sindhu Nagar Yojana. The plot in suit was allotted to Smt. Lajwanti Devi on 10.11.1967 by the opposite party No. 2, There was a condition in the deed of transfer that the allottee Smt. Lajwanti Devi was to raise the construction over the plot within 24 months. Smt. Lajwanti Devi failed to raise construction. The Society passed resolution to forfeit the plot No. A-22 and informed the Deputy Registrar Housing who approved the resolution on 29.4.1995. The opposite party No. 2 allotted the plot to the revisionist on 26.6.1995 and till then he is in possession Smt. Lajwanti Devi had executed Will in favour of Tilak Raj Khatri the father of the opposite party No. 1. Since the possession of the plaintiff/ revisionist was being interfered by the opposite party No. 1 Anuj Khatri son of Tilak Raj Khatri on the basis of the Will in favour of his father, the Suit No. 320 of 2003 was filed by the plaintiff/revisionist along with the application for ad interim injunction.
3. The learned trial court instead of granting injunction simply issued notice. It is against this order the instant revision has been filed.
4. The learned counsel for the revisionist has argued that plot in question which was earlier allotted in favour of Smt. Lajwanti was legally forfeited by the society opposite party No. 2 and after forfeiture, Smt. Lajwanti Devi has no right to execute Will in favour of Tilak Raj Khatri, father of opposite party No. 1 and he was legally allotted the plot in question by the society and since then he is in possession and he has raised boundary wall. Therefore, on the strength of this evidence the learned trial court must have granted ad interim injunction. It has been argued that the learned trial court has failed to exercise jurisdiction which is vested in It. In support of its contention the learned counsel for the revisionist has referred the judgment in Smt. Urmila Devi v. Nagar Nigam, Lucknow, 2003 (3) AWC 1715 (SC) : AIR 2003 All 158. This decision relates to an order which was passed before the amendment in Section 115, C.P.C. by the Parliament by Amending Act of 1999 with effect from 1.7.2002. The learned counsel for the opposite parties has raised preliminary objection against the maintainability of the revision, learned counsel for the opposite party No. 1 has referred a judgment of this Court in Civil Revision No. 237 of 2003, Rafiullah Khan v. Khalid Umar and Ors. In this case the impugned order was an order under Order XXXIX Rule 4, C.P.C. by which earlier injunction order was modified. Therefore, this decision referred to by the learned counsel for the opposite parties is of no help to him.
5. Learned counsel for the opposite party No. 1 has also referred a judgment of the Supreme Court in Shiv Shakti Cooperative Housing Society, Nugpur v. Swaraj Developer and Ors. In this judgment the effect of the proviso to Section 115, C.P.C. added by the Amendment Act No. 46 of 1999 has been discussed. While in State of U. P. Section 115, C.P.C. has been substituted by a new provision by U.P. Ordinance No. 5 of 2003 and further by U.P. Ordinance No. 26 of 2003. Now the relevant provision under Section 115, C.P.C. as applicable in State of U. P. Is as follows :
"115. Revision. -- (1) A superior court may revise an order passed in a case decided in an original suit or other proceedings by a subordinate court where no appeal lies against the order and where the subordinate court has :
(a) exercised a jurisdiction not vested in it by law ; or
(b) failed to exercise a Jurisdiction so vested ; or
(c) acted in exercise of its jurisdiction illegally or with material Irregularity.
(2) A revision application under Sub-section (1), when filed in the High Court, shall contain a certificate on the first page of such application, below the title of the case, to the effect that no revision in the case lies to the district court but lies only to the High Court either because of valuation or because the order sought to be revised was passed by the district court.
(3) The superior court shall not, under this section, vary or reverse any order made except where :
(i) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding ; or
(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made.
(4) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the superior court."
6. Sub-section (3) of Section 115 authorizes the revising court to vary or reverse any order whether the order, if allowed to stand, would occasion a failure of justice or causes irreparable injury to the party against whom it is made.
7. Order XXXIX Rule 1, C.P.C. Is as follows :
"1. Cases in which temporary injunction may be granted.--Where in any suit it is proved by affidavit or otherwise :
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to (defrauding) his creditors,
(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property (or dispossession of the plaintiff, or otherwise causing Injury to the plaintiff in relation to any property in dispute in the suit) as the Court thinks fit, until the disposal of the suit or until further orders."
8. The aforesaid provision goes to show that Court is empowered to grant temporary injunction to restrain the dispossession of the plaintiff or otherwise protecting the plaintiff from any anticipated injury to the rights of the plaintiff. Prima facie the ex parte case of the plaintiff as stated in the application under Order XXXIX Rule 1, C.P.C. Is such which gives an impression that the learned trial court must have jurisdiction under Order XXXIX Rule 1, C.P.C. and the learned trial court was in position to give reason also for grant of ex parte injunction as provided under Order XXXIX Rule 3, C.P.C. but it appears that the learned trial court has failed to exercise a jurisdiction so vested. Therefore, it is a fit case to interfere under Section 115, C.P.C. by this Court,
9. There are certain disputed questions in the suit with regard to the possession and the title of the plaintiff/revisionist and the defendant opposite party No. 1. and his father Tilak Raj Khatri who has also filed a Suit No. 335 of 20O3, Tilak Raj Khatri v. Guru Dutt, after the filing of the suit by the revisionist. Therefore, all these disputed questions of facts cannot be decided in this revision. I am of the view that the learned trial court has failed to exercise jurisdiction vested in him and prima facie there appears to be that there was imminent danger to the alleged possession of the plain tiff/revisionist over the disputed plot.
10. In view of the aforesaid circumstances both the parties have agreed that after setting aside the impugned order the matter may be referred back to the learned trial court to decide the pending application under Order XXXIX Rule 1, C.P.C. expeditiously and in the meantime the parties shall maintain status quo with regard to the possession in terms of the interim order dated 19.8.2003, passed by this Court, by which it was directed that the possession of the revisionist shall not be disturbed over the plot in suit.
11. In view of the above, the revision is allowed. The impugned order dated 14.8.2003 is modified to the extent that the possession of the revisionist over the plot No. A-22 in Sindhu Nagar Yojana shall not be disturbed by the opposite parties till the application for ad interim injunction is decided by the trial court after hearing both the parties. At the same time the learned trial court is also directed to decide the pending injunction application in both the Suit Nos. 320 of 2003 and 335 of 2003 one and the same time expeditiously say within a period of four weeks from the date the copy of this order is served by either of the parties to the suit.