IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.443 of 2009 Date of decision : July 26, 2010 Dev Dutt Sharma …Petitioner. Versus Nasib Kumar and another …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Sanjeev Kuthiala, Advocate. For the Respondents : Mr. N.K. Thakur, Advocate. Surjit Singh, J (Oral) Petitioner-plaintiff is aggrieved by the order dated 11th June, 2009 of the learned Additional District Judge, by which accepting the appeal of respondents- defendants against the order dated 12th September, 2008, passed on an application, under Order 39 Rules 1 and 2 of the Code of Civil Procedure, it has been held that the said application had become infructuous, on account of the facts narrated in a subsequent application of the plaintiff- petitioner, under Section 94(e), read with Section 151 of the Code of Civil Procedure. 2. Petitioner, claiming himself to be a tenant in a shop, filed a suit for permanent prohibitory injunction, restraining the defendants-respondents, who are alleged to Whether reporters of the local papers may be allowed to see the judgment? …2… be landlords, from ousting him from the shop, except by due process of law. He also filed an application, under Order 39 Rules 1 and 2 of the Code of Civil Procedure, on the very day of the institution of the suit. An ex-parte order was passed on that application, on 14th February, 2007. Notices were issued to the defendants-respondents for 27th February, 2007. Respondents-defendants did not put in appearance and ex-parte order dated 14th February, 2007 was made absolute. 3. Thereafter, an application, under Section 94(e) of the Code of Civil Procedure, was moved by the plaintiff- petitioner, alleging that disobeying the order dated 27th February, 2007, defendants-respondents had forcibly ousted him from the shop and thrown out his articles. That application was allowed, vide order dated 11th June, 2008, copy Annexure P-8. Order was challenged in this court, by filing a petition, under Article 227 of the Constitution of India. This Court disposed of that petition, vide order dated 23rd July, 2008, copy Annexure P-9. This court ordered that the application, under Order 39 Rules 1 and 2 of the Code of Civil Procedure, being still pending, order on application, under Section 94(e) of the Code of Civil Procedure, could not have been passed. The Court directed that the said application, under Order 39 Rules 1 and 2 of the Code of Civil Procedure, be disposed of first and in case the same was decided in favour of the petitioner, then the order passed on …3… the application, under Section 94(e) of the Code of Civil Procedure, copy Annexure P-8, would revive. 4. Thereafter, application, under Order 39 Rules 1 and 2 of the Code of Civil Procedure, was heard and decided by the trial Court, afresh, vide order dated 12th September, 2008, copy Annexure P-10. Application was allowed, which meant that order passed on the application, under Section 94(e) of the Code of Civil Procedure, copy Annexure P-8, stood revived. Order of the Sub Judge, Annexure P-10, was challenged by filing an appeal before the learned District Judge. Appeal was assigned to the Additional District Judge, Fast Track Court, who vide impugned order held that the application, under Order 39 Rules 1 and 2 of the Code of Civil Procedure, had become infructuous, when according to the allegation of the petitioner made in the application, under Section 94(e) of the Code of Civil Procedure, he had been ousted, prior to the passing of order Annexure P-10. 5. I have heard the learned counsel for the parties and gone through the record. 6. Learned counsel for the defendants-respondents submits that earlier order dated 27th February, 2007, making the ad interim order absolute, had been set aside by this Court, in a revision filed by the defendants-respondents, under Article 227 of the Constitution of India, vide order dated 2nd November, 2007. No such order has been placed on …4… record. Even if it be assumed that the said order had been set aside, that will be of little consequence, because this Court vide order dated 23rd July, 2008, directed the disposal of application, under Order 39 Rules 1 and 2 of the Code of Civil Procedure, afresh. 7. View taken by the learned Additional District Judge, while accepting the appeal, vide order Annexure P-16, is contrary to the direction of this court, contained in order dated 23rd July, 2008, Annexure P-9. When this Court had given the direction that application, under Order 39 Rules 1 and 2 of the Code of Civil Procedure, be decided and the order passed by the trial Court on the application, under Section 94(e) of the Code of Civil Procedure, was made dependent upon the order that was to be ultimately passed on that application (under Order 39 Rules 1 and 2 of the Code of Civil Procedure), learned Additional District Judge had no jurisdiction or authority to say that application, under Order 39 Rules 1 and 2 of the Code of Civil Procedure, had become infructuous, after the plaintiff-petitioner had been dispossessed, during the pendency of the said application. Appeal has not been dealt with by the learned Additional District Judge, on merits. 8. In view of the above discussion, the present application is allowed, impugned order is set aside and the matter is remanded to the learned Additional District Judge …5… to decide the appeal on merits. It is directed that the appeal shall be disposed of before 31st October, 2010. Petition stands disposed of accordingly. Pending application(s), if any, also stand disposed of, in view of the disposal of the main petition. Parties are directed to appear before the learned Additional District Judge, Fast Track Court, Una, on 31st August, 2010. Record be returned immediately. July 26, 2010(sd) ( Surjit Singh ), J