M.M.DAS, J. W.P.(C ) NO.15311 OF 2010 (Decided on 03.11.2010) GELHEI MALLICK & ORS. …… Petitioners. .Vrs. DIBAKAR MALLICK & ORS. …… Opp.Parties. CIVIL PROCEDURE CODE, 1908 (ACT NO.5 OF 1908) – ORDER 9, RULE 9. For Petitioner - P.C.Acharya For Opp.Parties - None M.M.DAS, J. Hearned Mr. P.C. Acharya, learned counsel for the petitioners and Mr. B.K.Nayak, learned counsel for the opposite parties. A suit was filed by the petitioners’ father for declaration of right, title and interest over Aco.0.29 decimals of land appertaining to sabik Plot No.105 under sabik Khata No.16 in Mouza Aliha in the erstwhile district of Cuttack, which corresponds to hal Plot No.94 under hal Khata No.6 in Mouza – Aliha. The suit was dismissed for default. Subsequently an application under Order 9, Rule 9 C.P.C. has been filed for restoration of the suit, which has been registered as I.A. No.364 of 2008 and is pending disposal before the learned Civil Judge (Senior Division), Kendrapara. The defendants, who were earlier set ex-parte in the suit, appeared in the said interim application and filed an application for grant of an interim injunction. The application was allowed directing maintenance of status quo against the plaintiffs, who were the petitioners in the application under Order 9, Rule 9 C.P.C. Against the said order, they filed F.A.O. No.60 of 2009 before the learned Additional District Judge, Kendrapara. The said appeal having been dismissed and the order of status quo confirmed, the petitioners being aggrieved have preferred the present writ application. The moot question which arises for a decision in this case is as to whether an application for grant of interim injunction can be maintained in an application filed under Order 9, Rule 9 C.P.C. for restoration of the suit before the suit is restored. Order 39, Rules 1 deals with grant of temporary injunction, which reads as follows:- “ 1. 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 defraud his creditors ; or (c) that the defendant threatens to dispossess the plaintiff, or otherwise cause injury or loss to the plaintiff, 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 dispossessing or otherwise causing injury or loss as the Court thinks fit, until the disposal of the suit or until further orders.” Since the suit was already dismissed, it is clear that the provision of Order –39, Rule –1 C.P.C. could not have been made applicable for grant of an interim injunction. The next question would be as to whether the Court can grant an order of interim injunction or direction to maintain status quo over the suit property by exercise of its inherent power under section 151 C.P.C. An interim order of injunction, either prohibitory or mandatory, in a suit, under Order 39, Rule 1 or e C.P.C. is always passed relating to the subject-matter of the suit. When the suit is dismissed and a petition is pending for restoration of the suit, the court is not in seisin over the dispute in respect of the subject-matter of the suit. The question to be decided in an application for restoration of the suit under Order 9, Rule 9 C.P.C. is as to whether the plaintiff had sufficient cause for his non-appearance when the suit was called on for hearing. When the court is, thus, in seisin of a petition of Order 9, Rule 9 C.P.C. the only jurisdiction which is exercisable by it is to find out as to whether the plaintiff had shown sufficient cause for non-appearance in the suit when the matter was called on for hearing and was dismissed for the plaintiff’s non-appearance and if the finding is in favour of the plaintiff, the suit is to be restored. The court, therefore, at that stage, has no jurisdiction to decide the dispute over the subject-matter of the suit which is in a stage of dismissal. In the considered view of this Court, therefore, an application for injunction or for any other interim order over the subject-matter of the suit can not be maintained in an application filed by the plaintiff under Order 9 Rule 9 C.P.C. filed for restoration of the suit. The said application filed by the defendant in the instant case on which the interim orders have been passed was, therefore, misconceived and the learned courts below could not have passed such interim orders. Hence, the impugned orders passed by the learned Civil Judge (Senior Division), Kendrapara and the learned Additional District Judge, Kendrapara in I.A. No.257 of 2009 and F.A.O. No.60 of 2009 respectively are unsustainable which are accordingly set aside. The writ petition stands allowed. As it is submitted that I.A. No.257 of 2009 filed under Order 9, Rule 9 C.P.C. is pending since 2008, the learned Civil Judge (Senior Division), Kendrapara is directed to dispose of the said application by end of January, 2011. Writ petition allowed. 2