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1975 DIGILAW 146 (KAR)

KANNA BELCHADA v. RAMAPPA POOJARY

1975-09-22

K.J.SHETTY

body1975
( 1 ) THIS petition under S. 115, is by defendant 1 challenging the interim injunction granted against him in OS. 194 of 1975. Respondent 1 filed the said suit in the Court of the Munsiff at Buntwal, S. Kanara Dist for permanent injunction restraining the defendants from interfering with his alleged possession and enjoyment of the plaint A schedule properties. The plaint A schedule properties consist of (1) S No. 102/1a, wet, measuring 48 cents and (2) S. No. 102/1a, portion, wet, measuring 58 cents. ( 2 ) THE plaint was presented on 7-8-1975. On the same day, the plaintiff moved the trial Court for a temporaryy injunction. The learned munsiff granted the prayer in the following terms :" I. A. No. II:-To issue temporary injunction restraining the defendants, their men, servants, successors etc from entering into and interfering with petitioner's possession of Dlaint A schedule properties and for an order of ad interim injunction pending disposal of this application. Heard Mr. EVB. for plaintiff. Peruse the affidavit annexed with IA. No. IT and the sketch produced along with the plaint and other documents. Issue ad interim injunction as prayed in IA. No. II which shall be in force till 6-10-75, simultaneously with notice on I. A No II to defendants issue suit summons with emergent notice on IA. No. II to defendants to appear on 19-8-1975. "challenging the validity of the above order, defendant 1 has preferred the revision petition. ( 3 ) THE sole contention urged for the petitioner is that the injunction order was without jurisdiction as it was contrary to S. 4 of the "karnataka act 31 of 1974. Counsel for respondent 1, however, submits that the revision petition is not maintainable. Before I consider the contention urged for the petitioner, it is necessray to dispose of the preliminary objection sec. 115 confers revisional jurisdiction on this Court. "this Court may ran for the record of any case, which has been decided by any Court subordinate and in which no appeal lies thereto, and if such subordinate Court appears (a) to have exercised a jurisdiction not vested in it by law and (b ). . . . . " (Rest omitted) it is urged that the order impugned is appealable under Or. 43, R. 1 (r), cpc and therefore no revision lies to this Court. . . . . " (Rest omitted) it is urged that the order impugned is appealable under Or. 43, R. 1 (r), cpc and therefore no revision lies to this Court. ( 4 ) SUFFICE it to state that that contention is not tenable. In Major S. S. Khanna v. Briq F. J. Dillon, AIR. 1964 SC. 497. while dealing with the scope of S 115 CPC the Supreme Court observed :" If an appeal lies against the adjudication directly tc the High court or to another Court from the decision of which an appeal lies to the High Court, it has no power to exorcise its revisional jurisdiction, hut if the decision itself is not appealable to the High Court directly or indirectly, exercise r,f the revisional jurisdiction by the High Court would not be deemed excluded. "what follows from the above observation is, if an appeal lies against the order impugned herein directly to the High Court or to another Court from the decision of which an appeal lies to the High Court, I have no power to exercise my revisional jurisdiction But, where the order itself is not appealable to the High Court, directly or indirectly, I am not precluded from exercising my revisional jurisdiction. It is not in dispute that the ad interim injunction granted by the Munsiff is not appealable to this court. Assuming that it is appealable to the Court of the Civil Judge, the order of the appellate Judge is not appealable to this Court. Therefore, there is no bar for entertaining the revision petition. In support of the contention, Counsel for respondent 1 next relied upon the following two decisions of this Court in Katani Thippanna v. S. Mastimul, (1964) 2 Myslj. 414. and Middle Linga Gowda v. Channamma, (1973) 2 Myslj. 134. I have perused these decisions. The facts therein are far removed from those of the present case. Therefore, the principles stated therein are of no assistance to respondent 1. The preliminary objection is therefore rejected. ( 5 ) I will turn now to the contention urged for the petitioner. S. 4 of act 31 of 1974 provides :" 4. Wo temporary injunction without notice.-Notwithstanding anything in any law, no Civil Court shall grant temporary injunction in respect of an agricultural land except after service of notice of the application for the same on the defendant. ( 5 ) I will turn now to the contention urged for the petitioner. S. 4 of act 31 of 1974 provides :" 4. Wo temporary injunction without notice.-Notwithstanding anything in any law, no Civil Court shall grant temporary injunction in respect of an agricultural land except after service of notice of the application for the same on the defendant. "the above provision is not directory. It is a mandate issued to the civil Courts not to issue ad interim inlunction in respect of agricultural lands. The Courts before issuing ex parte injunction, must therefore exercise a little more caution to scrutinise the subject matter of litigation and if it involves agricultural land it must first issue notice to the defendant and consider his objections before making any order. The Court below has failed to observe these requirements. Ordinarily, I do not exercise my revisional jurisdiction in favour of a party who could as well move the lower Court for vacating the ad interim order. But in this case, I must make an exception. The order is ex facie without jurisdiction if not conscious violation of the mandatory provision. ( 6 ) IN the result, this revision petition is allowed and the impugned order is set aside. In the circumstances I make no order as to costs. --- *** --- .