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1973 DIGILAW 132 (KAR)

HAMUMAGA v. ANJANAPPA

1973-07-10

M.S.NESARGI

body1973
( 1 ) THIS matter was originally filed as MFA. No. 236 of 1973. The respondent in the said appeal appeared and objected that the appeal was not maintainable as the order in question as not an order falling within the ambit of Or. 39, R. 2 or 4 of CPC. The preliminary objection was heard and a considered order was passed by this Court on 26-6-1973 holding that the order in question fell within the ambit of R. 3 of Or. 39 CPC. and within r. 1, 2 or 4 of the said Order, and therefore, the appeal was not maintainable. At that stage Sri V. S. Gunjal, the learned Counsel for the petitioner, prayed that the appeal may be converted into a civil revision petition and that prayer was granted. It is under these circumstances that this revision petition came to be registered. ( 2 ) THE petitioner is plaintiff in O. S. No. 44 of 1973 on the file of the vacation Civil Judge, Kolar. He filed the said suit on 19-5-1973 praying for permanent injunction against the respondent in regard to his possession and management of certain lands. He filed LA. No. I with the plaint praying for issue of temporary injunction and the learned Vacation Civil Judge heard the Advocate, perused the affidavit filed in support of LA. No. I and ordered that in view 'of the fact that the plaintiff is a tenant and as per the will both the defendant and Puttamma were owners of the land in question, it was not, according to him, a fit case to grant an order of temporary injunction at that stage and a notice was necessary to be issued. He, therefore directed issue of notice to the defendant viz. , respondent. The petitioner-plaintiff being aggrieved by the fact that ad interim injunction was not granted to him and notice was issued to the defendant viz. , the respondent, filed a miscellaneous first appeal as mentioned earlier. ( 3 ) THE defendant in the suit has got himself represented in this revision petition also. He has filed his counter-affidavit when the matter was pending as miscellaneous first appeal, to show that the petitioner-plaintiff is not entitled to temporary injunction. Sri V. S. Gunjal the Beamed Counsel for the petitioner, urged that the civil revision petition is maintainable as has been held in H. Bevis and co. He has filed his counter-affidavit when the matter was pending as miscellaneous first appeal, to show that the petitioner-plaintiff is not entitled to temporary injunction. Sri V. S. Gunjal the Beamed Counsel for the petitioner, urged that the civil revision petition is maintainable as has been held in H. Bevis and co. Kanpur V. Ram Behari AIR. 1951 All. 8. and tha though the Vacation Civil Judge has not thought it fit to grant ad inertim injunction order, this Court, in exercise of its power under Section 115 of the Code of Civil Procedure cpc. should pass an ad interim injunction order in view of the merits of the case of the petitioner-plaintiff. In this regard also, he drew support from the above cited decision. ( 4 ) SRI N. Raghupathy, the learned Counsel appearing on behalf of the respondent, urged that the civil revision petition is not maintainable as all that the Vacation Civil Judge did on 19-5-1973 was to postpone consideration of I. A. No. I to a future date and not to pass any order which can be said to fall within any of the provisions of the Rules of Order 39 of the Code of Civil Procedure. ( 5 ) I see much force in the contention of Sri V. S. Gunjal because on reading Rules 1 and 3 of Order 39 CPC it is clear that the Court derives its power to issue ad interim injunction i. e. , if it is convinced that immediate danger to the subject matter of the suit is apprehended, from Rules 3 and 1 of Order 39 CPC, and, therefore the order refusing to exercise that power would necessarily amount to an order passed under R. 3 of Or. 39 cpc as already held by me in the order passed in the very same matter pending as MFA. No. 236 of 1973. Therefore, the contention of Sri Raghupathy that no order was passed by the Vacation Civil Judge on 19-5-1973, is not sustainable, and when such an adverse order is passed, a party can approach this Court under S. 115 CPC. The contention of Sri V. S. Gunjal that the learned Vacation Civil Judge committed an irregularity in not granting ad interim injunction order because he failed to exercise jurisdiction vested in him, is to be examined. The contention of Sri V. S. Gunjal that the learned Vacation Civil Judge committed an irregularity in not granting ad interim injunction order because he failed to exercise jurisdiction vested in him, is to be examined. ( 6 ) THE stage at which the matter is pending makes the question of considering issuing or not of an ad interim injunction order, recede to the background because the defendant to the suit has already appeared and filed his counter raising objections to the grant of temporary injunction prayed for by the plaintiff in I. A. No. I to the said suit. Both the Counsel stated that the Civil Judge, Kolar has directed the records to be sent over to the Munsiff, Chikkabalapur because he no longer remained a Vacation civil Judge beyond 27-5-1973. Such an order appears to have been made on 5-7-1973. When both the parties are before the Court and their pleadings are on record, it would be improper to pass an ad interim order behind the back of one party. The pleadings are to be considered and a considered order has got to be passed. ( 7 ) THEN the next question is whether it would be in the interest of justice for this Court to consider this aspect of the matter and pass an order whether the temporary injunction prayed for by the petitioner-plaintiff should or should not be granted. I am clearly of opinion that it would not be in the interest of jetties for this Court to enter into this aspect of the matter at this stage. The matter is properly before the Munsiff, Chikkaballapur for consideration and it is primarily his jurisdiction to consider that aspect and pass a considered order. All that is necessary to be done is to see that the records of the suit reach the Munsiff quite early and the Munsiff passes an order on I. A. No-I in the suit without any delay. ( 8 ) IN view of the foregoing reasons, I see no merit in this revision petition and dismiss the same. The parties are directed to appear before the court of Munsiff, Chikkaballapur on 23-7-1973 for hearing on I. A,. No. I in the said suit. The Munsiff, Chikkaballapur is directed to hear I. A. No. 1 on the said date and dispose of the same according to law. The parties are directed to appear before the court of Munsiff, Chikkaballapur on 23-7-1973 for hearing on I. A,. No. I in the said suit. The Munsiff, Chikkaballapur is directed to hear I. A. No. 1 on the said date and dispose of the same according to law. The Civil judge, Kolar, is directed to see that the records are transmitted immediately from his Court to the Munsiff, Chikkaballapur. No order as to costs under the circumstances of this case. --- *** --- .