Civil Revision No. 5831 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5831 of 2008 Date of Order: 11.11.2009 Ajit Singh ....Petitioner Versus Kapur Singh and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Sudhir Pruthi ,Advocate for the petitioner. Mr. G.S.Sandhawalia, Advocate for respondents No. 1 to 5. RAJIVE BHALLA, J (Oral). The petitioner challenges an order dated 12.08.2008, passed by the Additional District Judge, Jalandhar, accepting the appeal filed by respondents no. 1 to 5 and setting aside the order dated 06.01.2006, passed by the Civil Judge (Junior Division), Jalandhar. The petitioner filed a suit for declaration that the order dated 06.09.2005 passed by the S.D.M.(II), Jalandhar, exercising powers of the Collector under the Redemption of Mortgages (Punjab) Act, 1913, directing redemption of the suit land, is null and void. The petitioner denied the existence of a mortgage and pleaded that he is owner in possession on the basis of a registered Will, executed by Kartar Kaur, in his favour. Along with the suit, the petitioner filed an application for grant of an interim injunction to protect his possession. Civil Revision No. 5831 of 2008 -2- The respondents pleaded that the controversy in the suit has already been decided in their favour in an earlier suit for possession but as the petitioner is in possession as a mortgagee, they were compelled to file an application for redemption of the mortgage. The Civil Judge (Junior Division), Jalandhar vide order dated 06.01.2006, granted an interim injunction. The appellate court, however, accepted the appeal, reversed the order, passed by the trial court and vacated the interim injunction. Counsel for the petitioner submits that the question of ownership of the suit land is pending adjudication in RSA No.2991 of 2005 titled as Bhupinder Kaur v. Gurdial Kaur. The petitioner has filed cross objections, in the appeal claiming ownership on the basis of a Will executed by Kartar Kaur. In addition, as the petitioner is admittedly in possession of the suit land and the legality of the order of redemption passed by SDM (II), Jalandhar is to be adjudged, in the suit the balance of convenience lies in favour of the petitioner. In case the petitioner's possession is not protected he would be dispossessed, thus causing irreparable loss, harm and damage to him. Counsel for the respondents, on the other hand, submits that the appellate court has not committed any error in vacating the interim injunction. Respondents no.1 to 5 have already been held to be owners of the suit land. However, as the petitioner is a mortgagee in possession, the respondents filed an application for redemption of the mortgaged property. The civil suit has been filed by the petitioner to perpetuate his possession. It is submitted that the Civil Revision No. 5831 of 2008 -3- dispute pending in appeal before the High Court is irrelevant as the petitioner did not file any appeal before the first appellate court and has filed cross objections in the second appeal, so as to delay the disposal of his suit. I have heard counsel for the parties, perused the impugned order and have no hesitation in holding that the first appellate court committed an error of jurisdiction in accepting the appeal and vacating the interim injunction. Admittedly, the petitioner is in possession of the suit land, as a mortgagee. The S.D.M (II), Jalandhar, has ordered redemption of the mortgaged property and has directed the petitioner to deliver possession of the suit land to respondents no.1 to 5. The order passed by the S.D.M.(II), Jalandhar, is under challenge in the civil suit, filed by the petitioner, pursuant to a statutory remedy provided by Section 12 of The Redemption of Mortgages (Punjab) Act, 1913. In addition, the question of ownership of this land is pending adjudication before the High Court in RSA No.2991 of 2005 titled as Bhupinder Kaur v. Gurdial Kaur. In view of these facts it belies comprehension as to how the first appellate court could hold that the petitioner would not suffer irreparable loss, harm and damage, if he is dispossessed. An observation by the first appellate court that in case the suit is decreed the petitioner would be put back into possession is perverse and arbitrary. The loss of possession cannot be compensated by putting a party back into possession. The first appellate court, therefore, had no jurisdiction to vacate the interim injunction granted by the trial court. In view of what has been stated hereinabove, the appeal is Civil Revision No. 5831 of 2008 -4- allowed, the order dated 12.08.2008, passed by the Additional District Judge, Jalndhar, is set aside and the order dated 06.01.2006, passed by the Civil Judge Junior Division), is restored. The trial court is directed to decide the suit expeditiously. November 11, 2009 (RAJIVE BHALLA) nt JUDGE