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Civil Revision No.152 of 1979, decided on 30th January, 1984.

Civil Procedure Code (V of 1908)-

---S.115 and OXXXIX, r.2(3) & O.XLII, r.1--Order consigning suit to record while dealing with interim application by trial Court--Such order was against law and suffered from material irregularity--Order was set aside in exercise of revisional jurisdiction by High Court--Suit of petitioner thus revived, trial Court directed to proceed further in accordance with law.

Petitioner in person.

Nemo for Respondent.

Date of hearing: 30th January, 1984.

l. This petition under section 115, C.P.C. calls in question the 'validity of the order dated 20-9-1978 of the learned Additional District Judge, Lahore whereby he dismissed petitioner's appeal and maintained the order of the learned Civil Judge, Lahore consigning petitioner's suit to record.

2. The relevant facts giving rise to this petition are that the petitioner had instituted a suit for permanent injunction against the respondent in respect of the disputed property. Along with the suit he filed an application for interim injunction restraining the respondent from raising a wall on the disputed site. The learned Civil Judge allowed the maintenance of status quo pending decision of the suit. Thereafter, they petitioner filed another application under Order XXXIX, rule 2(3), C.P.C. contending therein that the respondent has violated the order of status quo passed by the learned trial Court. The application was allowed by the learned Civil Judge who directed the respondent to demolish the wail beyond the height of two feet. The respondent being aggrieved against the aforesaid order preferred an appeal which was allowed by the learned Additional District Judge, Lahore and remanded the case to the learned trial Court with a direction that a Local Commissioner be appointed to ascertain the factual position and to redecide the case in the light of the report submitted by him.

It appears that the petitioner in post remand proceedings expressed his inability to pay the Local Commissioner's fee. The learned Civil Judge vide the impugned order dated 28-5-1978 not only consigned his application under Order XXXIX, rule 2 (3), C.P.C. to record but also the entire suit wags directed to be consigned to record. The petitioner's appeal against -the afore-said order had failed before the learned Additional District Judge, Lahore. Hence this petition.

3. The petitioner who appeared in person contended that the learned Additional District Judge erred to hold that the appeal before him against the: order consigning the suit to record was riot maintainable. It is submitted that the order amounted to dismissal of the suit and was appealable. It was also stated that the learned Civil Judge committed material irregularity in consigning the petitioner's shit to record when he was dealing 'with the application under Order XXXIX, rule 2(3), C.P.C.

4. None has appeared on behalf of the- respondent to oppose this petition.

5. I have considered the contentions raised by the petitioner and have also seen the documents on the file. The perusal of the order passed by the learned trial Court showed that he consigned the suit the petitioners to record when he was dealing with the applications cinder Order XXXIX, rule 2(3), C.P.C. Similarly the order finally disposing of the suit by the learned Civil Judge was appealable before the learned Additional District Judge, Lahore and he erred to hold otherwise.

6. In view of the fact that the impugned orders passed by the learned rower Courts are against law and suffer from material irregularity the same are set aside and this petition is accepted. In the result the suit filed by the petitioner stands revived. The learned Civil Judge shall now proceed further in accordance with law.

7. Since nobody has appeared to contest this petition there shall be no order as to costs.

A.A.

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