Pran Nath Gandhi vs Makrand Sarup
1991 Latest Caselaw 149 Del

JUDGMENT

B.N. Kirpal, J.

(1) The respondent had filed a suit against the petitioner here in for an injunction in the year 1966. An ad interim ex parte injunction was granted by the Subordinate Judge restraining the petitioner from raising any construction in the premises which were under the tenancy of the petitioner.

(2) Tt appears that during the pendency of the suit an application was filed on 20th May, 1968 under Order 39 rule 2A alleging that the petitioner here in had committed a breach of the order of injunction.

(3) By order dated 5th October, 1978 the said suit was dismissed. The injunction which had been granted earlier was also vacated. It, however, appears that no formal orders were passed on the application under Order 39 rule 2A. Thereafter the plaintiff filed two applications under Section 151 Civil Procedure Code . praying that the application under Order 39 rule 2A be decided. These applications were filed on 29th January, 1979 and 22nd January, 1980, namely, long after the decision in the suit.

(4) Despite objection having been taken to the effect that the applications were not maintainable, by the impugned order dated 3rd May, 1980 the application filed under Section 151 on 22nd January, 1980 has been allowed and it was directed that the earlier application under Order 39 rule 2A should be fixed for arguments, it is against this order that the present revision petition has been filed. In my view, once the suit had been dismissed on ^5th October, 1978 and the interim injunction vacated, there was no reason, in the facts of the

(5) In my view, once the suit had been dismissed on 5th and the interim injunction vacated, there was no reason, in the facts of the present case, as to why the Subordinate Judge should have proceeded to hear the application under Order 39 rule 2A. It is obvious that this is a case of dispute between the plaintiff, who was the landlord, and the petitioner before me, who is a tenant. There does not seem to be any valid explanation as to why the plaintiff-landlord waited for more than I z years before moving an application for revival of the earlier application under Order 39 rule 2A. It is true that if there is a breach of an injunction or disobedience of an order of the Court, action can be taken under order 39 rule 2A and such action can be taken independently of the suit itself but in the facts of the present care such action was not celled for. As already stated, the suit and the interim application were dismissed on 5th octomber, 1978 and if the plaintiff wanted to proceed with the application under order 39 rule 2A, it is at that time that he should have required the Court to pass appropriate orders thereon. When the Court has already come to the conclusion that there was no merit in the suit and that even a temporary injunction should not have been granted, it would have been a proper exercise of discretion for the Court not to proceed with the application under order 33 rule 2A, long after the dismissal of the suit. The moving of the application under Section 151 by the plaintiff does not, under these circumstances, appear to be bona fide.

(6) For the aforesaid reasons, this petition is allowed and the order dated 3rd May, 1980 is set-aside. There will be no order as to costs.