I (a-‘Fj‘éa IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR. Singh “is‘mch WRIT PETITION NO. i l l 7 OF 2004 PETITIONER : Basant Kumar Jaiswal, S/o. Late Shri / PLAINTIFF Salikram Jaiswal, Aged about 48 years, Occupation —Cultivator/ village Patel, R/o. Village Sarvani, Tahsil Kharsiya, District Raigarh. (C.G.) VERSUS State of Madhya Pradesh [Now State of,»Qhhatt1sgarh], w lg“ Through; The Cbllector, Raigarh. Wee e9 ‘7"\ waa DEFENDANT No 2 2. Prahalad Singh Sikarvar, S.D.M. (Revenue) Circle Kharsiya, Tahsil-Kharsiya, District Raigarh. 3. Shri Santosh Gupta, Nayab Tahsildar, Kharsiya, Tahsil Kharsiya, District Raigarh (C.G.) DEFENDNT A No.3 . 4. Shant Kumar aiswal, S/o. Late Shri Salik Ram Jaiswal, Aged about 52 years, R/o. village Sarvani, Tahsil Kharsiya, District Raigarh. ( C.G.) WRIT PETITION UNDER ARTICLE 226227 OF THE CONSTITUTION OF INDIA FOR ISSUE OF AN APPROPRIATE WRIT THE NATURE OF MANDAMUS CERTIORARI ETC. OR DIRECTION/ORDER IN THE LIKE NATURE ETC. ALA. 9 RESPONDENTS DEFEN J ( HEGH COURT OF CHEATTISGARH AT BILASPUR S.B: Hon’ble Shri Prashant Kmmu' Mishra VVrit Petition N0. 4417/2004 i’ETITIONER ‘ : Basant Kumar Jaiswal Versus RESPGNDENTS : State of Macihya Pradesh and others Appearance: Shri Rakesh Pandey, ceunsel for the petitioner. Shri RR. Sinha, Panel Lawyer for the State/respondent N0. 1. Shri MK. Sinha, counsel for respondent No.4 WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA ORAL ORDER (18022011), Petitioner has challenged the order dated 20m October, 2004 passed by the Appellate Court allowing the appeal of respondent No.4 which, in turn, was preferred to challenge Trial Court’s order dated 28/07/2003 rejecting respondent’s No.4 application under Order 39 Rule 4 of CPC. (2) Facts of the case in short. are that plaintiff Basant Knmar .laiswal S/o Salik Ram Jaiswal filed a suit for declaration that the property described in schedule ‘A’ which is temple of Jaggannath Mahaprabhu and the lands of the temple are his personal properties and the orders for mutation passed by the respondent/defendant are void. He also prayed for declaration that his name be entered in the revenue records as Sarvarakar and the defendants be restrained from interfering in his possession. Applicationunder Order 39 Rule l and ' 2 ofCPC was also preferred. Respondent No.4 Shant Kumar J'aiswal S/o Salik Ram was not joined as a defendant therefore he moved an application under Order 1 Rule 10 of CPC. The Trial Court decided and granted application under Order 39 Rule 1 and 2 of CPC by its order dated 24/1 1/1999 and by separate order passed on the same date application filed by respondent No.4 under Order 1 Rule 10 of CPC was also allowed. (3) Respondent No.4 thereafter moved an application under Order 39 Rule 4 of CPC on 9/07/2001 for recalling order dated 24/1 1/1999. This application was rejected by the Trial Court on 28/07/2003. This order was under challenge before the court below and by the impugned order the Appellate Court has allowed the appeal and has remanded the matter to the Trial Court for decision afresh on the plaintiffs application under Order 39 Rule 1 and 2 of CPC. (4) During pendency of the appeal the petitioner also moved an application under Order 41 Rule 27 of CPC along with several documents which according to him would establish his right on the suit property and would demolish the case of respondent No.4, however the Appellate Court has rejected the said application. {5) Order challenged in this writ petition is an order of remand and both the parties are at liberty to argue the matter afresh before the Trial Couit therefore in the opinion of this Court, the Appellate Court has not committed any such error of jurisdiction warranting interference under Article 227 of the Constitution of India. More so, when admittedly the respondent No.4 was not a patty on the date \ (’3’ when the Trial Court initially considered and granted plaintiff’s applicaticm under Order 39 Rule l and 2 of CPC. (6) In $0 far as rejection of petitiomr’s application under Order 41 Rule 27 of CPC is concomed, this Court is of the opinion that when once the Appellate Couxt has remzmded the matter for fresh decision, there was abeolutely no justification for rejecting petitioner’s prayer Kt for submitting additional evidence in form of additionai documents along with application under Order 41 Rule 2‘7 of CPC. This part of the order contained para 12 ofthe impugned order is set aside and it I is directed While considering the plaintiff’s application under Order 39 Rule 1 and 2 of CFC the Trial Court shall aleo consider the documents filed by the petitioner along with. his application under Order 41 Rule 27 of CPC. (?) This court had granted interim order in favour of the petitioner on 16/12/2004 staying the operation of the impugned order. Learned counsel would submit that because of this interim order the injunction granted by the Trial Court was operative all along, therefore till application is considered and decided the said order of injunction granted by the Trial Court be continued, (8) Without going into this aspect as to whether by staying operation of the impugned order the order of temporary injunction i granted by the Trial Court shall revive, it is directed that both the i parties shall maintain status-(1110 in all respect with regard to the suit property till 30m June; 201 l. W/ (9) In View of the fact the suit is pending since March 1999‘ it is also directed that the Trial Comt shall dispose of the application under Order 39 Rule l and 20f CPC within a period of four months from the date of receipt of certified copy of this order, and shall also decide the suit by 3 lSt of December, 201 l. ( l 0) Record of the Trial Court be sent back immediately. (1 1) Parties may appear before Trial Court on 14m March 201 l. Sd/- Prashant Kumar Mishra Judge /