SHAHID BILAL HASSAN-J: C.M.No.01 of 2023 Through this application, the applicants seek restoration of the captioned revision petition, which was dismissed for non-prosecution on 10.04.2023. Relying upon contents of the application adorned with an affidavit, the same is allowed subject to all just and legal exceptions and the office is directed to fix the main petition for today.
Main Petition Succinctly, father of the petitioners instituted a suit for specific performance against the respondents. Alongwith the suit an application for grant of temporary injunction under Order XXXIX, Rules 1 and 2, Code of Civil Procedure, 1908 was also filed. The suit and application were resisted by the respondents. The learned trial Court, after hearing arguments, dismissed application for grant of temporary injunction vide order dated 17.12.2015. The petitioners being aggrieved preferred an appeal before this Court but due to enhancement of pecuniary jurisdiction, the same was remitted to the District Courts and the learned appellate Court vide order dated 14.12.2016 accepted the appeal and passed restraining order as to change of possession of the suit property. The respondents filed an application under section 36, 94(c), 151, read with Order XXXIX Rule 2 and Order XXI, Rule 101, Code of Civil Procedure, 1908 for restoration of possession of four shops and a hall, situated at Sialkot road according to appeal decided on 14.12.2016, which was resisted by the present petitioner(s). The learned appellate Court vide impugned order dated 26.06.2021, accepted the said application and ordered to issue Robkar in the name of the respondents qua delivery of possession of the suit property forthwith; hence, the instant revision petition.
2. Heard.
3. It is an admitted fact on record that the learned appellate Court vide judgment dated 14.12.2016 accepted the application for grant of temporary injunction while allowing appeal filed against order dated 17.12.2015. The learned appellate Court after deciding the appeal on 14.12.2016 had become functus officio, because no matter remained pending with it and the suit inter se the parties was sub-judice before the learned trial Court. If any violation of order dated 14.12.2016 was committed by either of the party, the aggrieved person had remedy of filing application under Order XXXIX, Rule 2-C read with section 144 of the Code of Civil Procedure, 1908 seeking restitution of possession and contempt proceedings for violation of the Court's order. For ready reference, the said provisions of law are reproduced infra:- '144. Application for restitution. (1) where and insofar as a decree is varied or reversed the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.
(2) no suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1).'
Sub-Rule 2-C of Order XXXIX, Code of Civil Procedure, 1908: '2-C Consequences of disobedience or breach of injunction: (1) In case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the prison for a term not exceeding three months, unless in the meantime the Court directs his release.
(2) ...........................' In view of the above said provisions of law, the Court of first instance, where the suit was pending and sub-judice, had to be resorted to for redressal of grievance form of filing an application under Order XXXIX, Rule 2-C read with section 144, Code of Civil Procedure, 1908 in case of any violation of the injunctive order passed in favour of a party. The application under section 36, 94(c), 151 read with Order XXXIX, Rule 2 and Order XXI, Rule 101, Code of Civil Procedure, 1908 was not maintainable before the learned appellate Court, because Rule 101 of Order XXI, Code 1908 cannot be read in isolation rather the same would be considered and read with preceding Rule 100. Both the said Rules are reproduced for ready reference: '100. Dispossession by decree-holder or purchaser. (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.
101. Bona fide claimant to be restored to possession. Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment debtor, it shall direct that the applicant be put into possession of the property.'
The above provisions of law vividly demonstrate that the same relate to right of a third person who is in possession of the property, for which a decree is passed and not related to the parties to the suit. However, here the matter is still sub-judice before the learned trial Court and has not finally been decided; therefore, the proper remedy as observed above was not under sections 36, 94(c), 151 read with Order XXXIX, Rule 2 and Order XXI, Rule 101, Code of Civil Procedure, 1908 rather was under Order XXXIX, Rule 2-C read with section 144, Code of Civil Procedure, 1908, that too, before the Court of first instance i.e. civil Court where the suit inter se the parties is pending.
4. For the foregoing reasons, it is concluded that the learned appellate Court has wrongly exercised vested jurisdiction while passing the impugned order dated 26.06.2021, which cannot be allowed to hold field further.
5. Resultantly, while exercising jurisdiction under section 115, Code of Civil Procedure, 1908, the revision petition in hand is accepted, impugned order dated 26.06.2021 passed by the learned appellate Court is set aside, consequent whereof the application filed under sections 36, 94(c), 151 read with Order XXXIX, Rule 2 and Order XXI, Rule 101, Code of Civil Procedure, 1908 by the respondents stands dismissed. No order as to the costs.