Civil Revision No. 5884 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5884 of 2009 (O&M) Date of Decision: 26.11.2010. Mrs. Meira Kumar ....Petitioner Versus Smt. Medhavi Kirti and another ...Respondents CORAM : Hon'ble Mr. Justice Mahesh Grover Present:- Mr. Rakesh Kumar Khanna, Sr. Advocate with Mr. Naresh Kumar Joshi, Advocate for the petitioner. Mr. S.R. Hooda, Advocate for respondents. MAHESH GROVER, J (Oral) The grievance of the petitioner stems from the order of the Additional District Judge, Faridabad, dated 26.9.2009. The plaintiffs- respondents, who filed a suit against the present petitioner arraying her as a defendant, filed an application under Order 39 Rules 1 and 2 CPC which was declined by the learned trial Court vide its order dated 15.1.2009 which resulted in the filing of an appeal before the Additional District Judge, Faridabad, who passed the impugned order affirming the order of the trial Court and declining the injunction to the plaintiffs-respondents, but while doing so made observations in Para-26 and para-31 which is the cause of grievance to the petitioner. Counsel for the petitioner has stated that while determining/declining the application under Order 39 Rules 1 and 2 CPC the Appellate Court could not have adjudicated upon the question of res-judicata, as also on the question of there being a remedy available to the parties under the Specific Relief Act, in the absence of any issue having been struck on these aspects of the matter. The Appellate Court has thus committed gross illegality in making observations qua the aforesaid aspects of the matter. Besides gross impropriety has been committed by the Appellate Court who while observing that there has been concealment of facts and that the mutation has been procured falsely and Civil Revision No. 5884 of 2009 (O&M) -2- illegally, has ordered the criminal prosecution of the person perceived by the Court to be a culprit without there being any material to substantiate and sustain such an observation. Having heard learned counsel for the parties and having perused the impugned order, I am of the considered opinion that the contention of learned counsel for the petitioner merits acceptance. The Court while determining the application under Order 39 Rules 1 and 2 CPC has to be dictated by the principles laid down by the said provisions of law. It has merely to see whether there exists a prima-facie case and balance of convenience lies in favour of the applicant and that whether an irreparable loss and injury would be caused to such a person if injunction is not granted. While answering the controversy within the aforesaid para-meters of the principles of Order 39 Rules 1 and 2 CPC the Court can take into consideration the material that may exist before it but under no circumstance can it make observations which conclusively determine the controversy on issues which are substantially in question between the parties so as to prejudice the case of either of them and at this stage when merely an application under Order 39 Rules 1 and 2 CPC has been decided, to observe on the issue regarding res-judicata and the remedy available to the parties under particular provision of law as also to observe that a mutation has been procured falsely and then ordering criminal prosecution of the perceived violator of law is not proper to the mind of this Court. No observation which substantially affected the rights of the parties are to be made while determining the application under Order 39 Rules 1 and 2 CPC. These observations if perused, substantially prejudice the case of the petitioner and are thus untenable in law. For the aforesaid reasons, the petition is accepted and is disposed of with an observation that the observations of the Appellate Court as appearing in Paras 26, 27, 30 and 31 which is detrimental to the case of the petitioner shall not effect the merits of the case and the Court which eventuality decides the case shall not be prejudiced by the observations aforesaid and the direction given in Para 31 regarding the criminal prosecution of Ex. MLA Ram Rattan or Civil Revision No. 5884 of 2009 (O&M) -3- the petitioner or any other person involved in the said Act shall for the time being be not enforced. The trial Court shall, however, decide the case independently of these observations and in the eventuality of it coming to such a conclusion at the time of deciding the case it shall be free to make any observations which the material on record may so warrant. (MAHESH GROVER) 26.11.2010 JUDGE Reema