CR No.6020 of 2009 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.6020 of 2009 DATE OF DECISION: 07.04.2010 **** Devender Kumar . . . . Petitioner VS. Smt. Santra Devi and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr. Ajay Jain, Advocate for the petitioner. Mr.Sanjay K. Chauhan, Advocate for respondent No.1. **** RAKESH KUMAR JAIN J. (ORAL) This revision petition is directed against order dated 28.07.2009 passed by the Additional District Judge, Narnaul whereby, he has ordered the parties to maintain the status quo with regard to possession and restrained the defendants from alienating the suit property. Learned counsel for the petitioner has submitted that in a suit filed by the plaintiff/respondent, an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908 (for short ‘CPC’) was also filed, which was dismissed by the learned Additional Civil Judge (Sr. Divn.), Narnaul vide his order dated CR No.6020 of 2009 - 2 - 17.11.2007 holding that “thus, as a sequel to my above discussion, the applicant has failed to prove a prima-facie case, neither balance of convenience is titled in her favour, nor any kind of irreparable loss would be caused to her if the injunction is not granted. Accordingly, present application under Order 39 Rules 1 and 2 read with Section 151 CPC is hereby dismissed.” As a matter of fact, the plaintiff was not found to be in possession over the property in dispute, therefore, trial Court did not grant him injunction. Against the order of the trial Court, miscellaneous application was filed by the plaintiff before the First Appellate Court in which First Appellate Court passed the following order: - “In the present case the Trial Court record is already sent back to the concerned Court with the observation that – “after perusal of lower Court record, nothing can be expressed regarding the possession of the parties, hence lower Court record is sent back to the lower Court for recording plaintiff evidence for deciding the case on merits”. Learned counsel for appellant submits that now the case is pending for evidence and proceedings are resumed. 2. In view of the facts and circumstances of the case I am considered opinion that in the interest of justice status quo regarding possession and alienation needs to be CR No.6020 of 2009 - 3 - maintained by the respective parties. Accordingly, I hereby direct both the parties to maintain the status quo regarding possession and further to restrain from alienating the same till the conclusion of the proceedings pending before lower Court. Nothing expressed hereby shall affect the merits of the case pending before the said Court. Copy of this order be sent to the concerned Court. File be consigned to record room after due compliance.” Aggrieved against the aforesaid order, learned counsel for the petitioner has submitted that the order is unsustainable in the eyes of law for the reason that the Court did not find any merit in the appeal. The matter was remanded back to the trial Court for prosecuting the proceedings for the purpose of evidence but still injunction has been granted both for maintaining status quo with regard to possession as well as restraining the defendant from alienating the suit property. Learned counsel for the respondent has submitted that both the parties are claiming possession over the property, therefore, no harm would be caused if the order of status quo is ordered to be maintained and the defendant / petitioner is restrained from alienating the suit property as there would be unnecessarily multiplicity of litigation in case the property is sold during the pendency of the suit. CR No.6020 of 2009 - 4 - I have heard both learned counsel for the parties and perused the available record with their assistance. Undoubtedly, the trial Court has dismissed the application for temporary injunction as it did not find all the three basic ingredients in favour of the plaintiff. As a matter of fact, the First Appellate Court has also not found the plaintiff to be in possession as it has been observed that “after perusal of lower Court record, nothing can be expressed regarding the possession of the parties”. In the presence of these findings, the learned First Appellate Court had no jurisdiction to pass an order of injunction when it was not in a position to hold as to which of the party was in possession. It is for the plaintiff to prove on record in order to maintain his application under Order 39 Rules 1 and 2 of the CPC, that she is in possession and has got irreparable loss and balance of convenience in her favour and if during the pendency of the suit her possession is not protected then her civil rights would be materially effected. In the absence of such a finding, the learned Lower Appellate Court should not have pass the order of status quo which is in the form of injunction and also restrain the defendant from alienating the suit property. This order could only be passed if the learned First Appellate Court would have come to a conclusion on the basis of pleadings much less some evidence on record which prima facie proved that the plaintiff is in possession of the property and there is a threat of the property being sold by the appellant de hors the finding in the suit. Thus, the totality of the facts and circumstances of the case indicates only towards the illegal order having been passed by the Additional District Judge, CR No.6020 of 2009 - 5 - Narnaul. Therefore, the impugned order is set aside and the present revision petition is allowed though without any order as to costs. (RAKESH KUMAR JAIN) 07.04.2010 JUDGE vivek