November 12 v. Shri V. Ravi

Ms.K.Neha Mr. KMB Jaypal … for the petitioner Ms. Anjili Nag … for the respondent

The matter has been placed in the list at the instance of the opposite party.

On 07.11.2024, this revisional application was moved against the order No.3 dated 30.10.2024 passed in Other Suit No.82 of 2024.

By the impugned order, the Court below directed ad interim stage in aid of the main prayer for mandatory injunction and an interim order directing the defendant in the suit to permit the plaintiff to enter into the shop room in question.

The prayers in the civil suit are in the nature of permanent and mandatory injunction. The subject matter is of the shop room, which was in the possession of the defendant in the suit.

Ms. Anjili Nag, learned counsel for the plaintiff/opposite party has urged a preliminary point that the revisional application itself is not maintainable since the order dated

30.10.2024 directing the revisionist to allow the opposite party to enter into the premises is an appealable order.

Mr. Jayapal, learned counsel for the revisionist has relied upon two judgments to indicate that the order in question can also be challenged in revision. He relies on paragraphs 31 and 32 of the decision of the Supreme Court in Shiv Shakti Cooperative Housing Society, Nagpur vs. Swaraj Developments and others reported in (2003) 6 SCC 659. He has also relied upon in para 25 of the decision in the case of Best Sellers Retail (India) Private Limited vs. Aditya Birla Nuvo Limited and Others reported in (2012) 6 SCC 792.

Having carefully considered the two judgments, this Court is of the clear view that the interim order passed by the Court below, comes within the meaning of subrule (r) of Order 43 Rule 1 of the Code of Civil Procedure.

Such order must be deemed under Order 39 Rule 1 & 2 in aid of the main prayers for mandatory injunction.

Therefore, the order challenged this revisional application is an appealable. An order which is appealable cannot be challenged in the revision.

The revisionist may therefore prefer an appeal against the said order. The revisional application is not maintainable particularly considering para 25 of the Best Sellers Retail (India) Private Limited (supra).

If appeal is preferred by the defendant in the suit, the same shall be considered by the District Judge uninfluenced by the observations made in the order dated 07.11.2024.

Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities. ( Rajasekhar Mantha, J. )