MUHAMMAD USMAN KHAN AND ANOTHER vs MIRAJ DIN AND ANOTHER

' In a suit filed by the plaintiff petitioners for permanent injunction restraining the respondents from erecting any wall in Ghausia Street and also from obstructing the peaceful enjoyment of the plaintiff's door opening towards the street, a temporary injunction was issued by the trial Court which was later on confirmed. On the 23rd May 1974, that suit was dismissed. The plaintiffs- petitioners submitted an application for restoration of the suit. This application was accompanied by another application for temporary injunction. The application for temporary injunction was dismissed on the ground that it was not competent since there was no suit before the Court.

2. The petitioners filed an appeal against this order which was dismissed by the learned Additional District Judge on the 10th January 1975. He held that Order XXXIX, rules 1 and 2 were applicable to suits. When his attention was drawn to section 151, C. P. C. He held that he was of the view that for the same reason that section was also not attracted.

3. The learned counsel argued that the Courts are never powerless in the present circumstances to give interim relief to the petitioners.

4. The learned counsel for the respondents raised a preliminary objection about competence of the revision petition. He argued that since the petitioners were relying upon section 151, C. P. C. And were satisfied with the order of trial Court about the applicability of Order XXXIX, rules 1 and 2, C. P.

C. Their appeal was not competent. It should, therefore, be deemed that the appellate Court had passed an order dismissing the appeal in exercise of its revisional jurisdiction. Consequently, no second revision petition was competent. This argument is without substance. The trial Court, while disposing of the injunction application, had made a reference only to Order XXXIX, rules 1 and 2, C.

P. C. The learned Additional District Judge also dealt with the case on the basis that the proceedings before him were competent proceedings of appeal. He has nowhere noticed in this judgment any objection about the appeal being incompetent. In these circumstances, it cannot be held that the appellate Court had directly or indirectly exercised any revisional jurisdiction.

5. The learned counsel then argued that the injunction could not be granted under Order XXXIX, rules 1 and 2, C. P. C. Since no suit was pending before the Court. He further argued that section 151, C. P. C. Could not apply after the termination of the suit. It is correct that Order XXXIX, rules 1 and 2, C. P. C. Are applicable to injunction in suit but it cannot lead to the conclusion that section 151, C. P.

C. Which only saves inherent powers of the Court cannot apply. Although there is no suit pending before the Court yet an application for restoration is before it. If this application is allowed, the temporary injunction already issued will stands revived. If the wall is constructed before the restoration of the suit that will result in depriving the, plaintiffs of their right to be benefited by the temporary injunction already. A granted even if their application for restoration of the suit is allowed. It will, therefore, be in the interest of justice to issue temporary injunction under inherent powers of the Court. Such injunction can be granted wherever Order XXXIX is not applicable.

6. I, therefore, allow this petition with costs, set aside the order of the learned trial Court and the appellate Court and direct status quo to be maintained.