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_O. XLI, r. 33-Appellate Court, powers of Appeal not against judgment and decree passed in suit nor suit itself being tried by District Judge, District Judge, held, could not make any order determining ultimate fate of suit-District Judge in appeal called upon simply to examine correctness or otherwise of trial Court allowing temporary injunction to petitioner, District Judge, held, could uphold, vacate, or modify such order, or give any direction relating thereto, but could not dismiss suit yet to be heard and decided by trial Court.-

[Appeal (civil)].

Shaukat Ali Mehr for Petitioner.

Memo for Respondent No. 1.

Ch. Azim-ud-Din for Respondents Nos. 2 and, 3.

Date of hearing:- 6th October, 1982.

The facts giving rise to this civil revision are that the petitioner, Shahdev, filed a suit against the respondents, Lehri Khan and others, for a declaration with consequential relief. He also prayed for a temporary injunction which was allowed by a Civil Judge of Kasur. His order in this behalf was challenged by respondents Nos. 2 and 3, Mst. Zahur Bibi and another, by taking an appeal to the District Judge, Kasur. The learned Dirtrict Judge vacated the temporary injunction and also dismissed the suit holding that. it was barred by res judicata. Feeling aggrieved by the order of the learned District Judge, the petitioner has come up in revision to this Court.

2. It was contended by learned counsel for the petitioner that since the main suit was not before the learned District Judge, it could not be dismissed by him. According to him, the learned District Judge could merely uphold or vacate the temporary injunction granted by the trial Court but could not Make any order in regard to the main suit.

3. On the contrary, it was urged by learned counsel for the respondents that the learned District Judge had all the powers which were available to the learned trial Court and, therefore, his order relating to the dismissal of the suit was unexceptionable. In this connection, reliance was placed by him on Order XLI, rule 33 of the Code of Civil Procedure.

4. As explained above, the appeal before the learned District Judge was not against the judgment and decree passed in the suit nor the suit itself was being tried by him as a Court of original jurisdiction. He could not, therefore, make any order determining the ultimate fate of the suit. In the appeal before him, he was called upon to simply examine the correctness or 'otherwise of the order of the learned trial Court by which temporary relief was allowed to the petitioner. What the provisions of Order XLI, rule 33 of the Code of Civil Procedure empowered him to do was to uphold, vacate or modify the said order or give any direction in relation thereto but he could not dismiss the suit which was yet to be heard and decided by the learned trial Court. The order of dismissal of the suit was beyond the scope of the appeal taken to the learned District Judge and in making that order he had over-stepped his jurisdiction for which there is no warrant in law.

5. In this view of the matter, I accept this civil revision, set aside the order of the learned District Judge relating to the dismissal of the suit and direct that the suit shall be heard and decided by the learned Civil Judge in accordance with law.

6. The parties shall appear before the learned Civil Judge on 2nd November, 1982. There shall be no order as to costs.

s. A. H. Appeal accepted.

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