IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMP MO No. 175 of 2008 Date of decision July 23, 2008. __________________________________________________________ Naresh Kumar ….Petitioner Versus Dev Dutt Sharma ….Respondent. _________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 CMP MO No. 175 of 2008 For the Petitioner : Shri Neeraj Gupta, Advocate. For the Respondent: Shri Sanjeev Kuthiala , Advocate __________________________________________________________ Dev Darshan Sud, J. This petition has been filed by petitioner-defendant against the orders dated 11.6.2008 (Annexure P12) passed by learned Trial Court in an application under Section 94 (e) of the Code of Civil Procedure issuing mandatory injunction as prayed for by the plaintiff. The petitioner-defendant herein also prays for dismissal of application under Section 94 (e), as aforesaid, (Annexure P10) as not maintainable and the orders being in excess of the jurisdiction of the Court. Notice of this petition was issued to respondent-plaintiff who has put in appearance. I have heard learned counsel for parties and gone through the record. 1 Whether reports of Local Papers may be allowed to see the judgment? 2 It is indisputable that Order 39 Rules 1 and 2 of the Code of Civil Procedure vests power in a Court for grant of mandatory relief. (See Dorab Cawasji Warden Versus Coomi Sorab Warden and others (1990) 2 Supreme Court Cases 117 and Sujit Pal Vs. Prabir Kumar Sun and others AIR 1986 Calcutta 220). Learned counsel for parties have made submissions on the respective merits of their case. It is not disputed that application under Order 39 Rules 1 and 2 of the Code of Civil Procedure is still pending for final decision before the trial Court. Instead of granting mandatory relief first, the learned trial Court should have considered the application for interim/interlocutory orders. Taking the second application first only prejudges the entire case and leaves very little for meaningful adjudication of the main matter. I have not touched the respective merits of the case of petitioner, because doing so would have meant assuming powers of the trial Court and adjudicating the matter regarding injunction and issuance of directions which exercise cannot be undertaken under Article 227 of Constitution of India. In these circumstances, a direction is issued to the learned trial Court that it shall take up the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure and proceeding forthwith to dispose it of not later than one month from the date on which the parties appear before trial Court after this order. In case learned trial Court holds that the plaintiff is entitled to interim injunction, the order challenged in this petition shall revive. Needless to add that in case the Court does not find any merit in the application, the order challenged in this petition shall be deemed to have been vacated. Parties to appear before learned trial Court on 18th of August, 2008. Records, if received, be sent back immediately. When notice of this petition was sent, the operation of order challenged in this petition was stayed. It shall accordingly remain in abeyance till 3 the decision of application under Order 39 Rules 1 and 2 of the Code of Civil Procedure by learned trial Court. There shall be no order as to costs. July 23,2008 (Dev Darshan Sud), (ms) Judge