JUDGMENT M.R. Verma, J:- Feeling aggrieved by the order dated 18.6.2001 passed by the learned District Judge, Shimla in Civil Miscellaneous Appeal No.83-S/14 of 2000 whereby the appeal of respondent No. l against the order dated 28.9.2000 passed by the learned Subordinate Judge (2), Shimla allowing the application of the petitioner under Order 39 Rules 1 and 2 of the Code of Civil Procedure (hereafter referred to as the Code) in Civil Suit No.48/1 of 2000 has been set aside and the application of the petitioner has been dismissed, the petitioner has preferred the present petition. 2. Brief facts giving rise to the present petition are that the petitioner has instituted a suit for permanent prohibitory and mandatory injunction against the respondents in respect of the land comprising Khata Khatauni No. 112/224, khasra No.995/27 situate in Village Chamyana, Tehsil and District Shimla. The case of the petitioner, as made out in the plaint, is that the said land is jointly owned by the parties and respondent No.2 has sanctioned a map in favour of respondent No. 1 for raising construction over an area of 2 biswas of the said land which could not have been done because of the land being jointly owned by various co-sharers. Now, respondent No. l is trying to raise construction on the bets portion of the joint land which could not be done without partition. The petitioner also filed an application under Order 39 Rules I and 2 read with Section 151 of the Code for grant of temporary injunction restraining respondent No. 1 from raising any kind of construction over the land in suit during the pendency of the suit. 3. The defendant-respondent No. l resisted the suit and filed written statement wherein he raised the preliminary objections that the plaint lacks material particulars it is not maintainable especially when the petitioner had not come to the Court with clean hands, the suit is bad for non-joinder of necessary parties and that the plaintiff is estopped from instituting the suit. On merits it has been claimed that private partition has taken place between the co-sharers in respect of their joint land holdings and the plaintiff himself has constructed a house on a portion of the joint holding no share. 4. On merits it has been claimed that private partition has taken place between the co-sharers in respect of their joint land holdings and the plaintiff himself has constructed a house on a portion of the joint holding no share. 4. The application under Order 39 Rules 1 and 2 of the code was also contested by filing a reply thereto on similar ground as taken in the written statement. 5. After hearing the parties, the learned Trial Judge allowed the application and granted the temporary injunction as prayed for. The respondent No. 1 preferred an appeal against the aforesaid orders which was allowed by the learned District Judge by the impugned judgment and the order granting temporary injunction was set aside and the application for grant of such injunction was dismissed. Hence, the present petition. 6. I have heard the learned counsel for the parties and have also gone through the material placed on record. 7. Be it stated at the very outset that in exercise of its revisional jurisdiction under Section 115 of the Code, the High Court has limited powers to interfere with the order passed by a subordinate court. Such interference is justified in a case where the subordinate Court has exercised a jurisdiction not vested in it or has failed to exercise jurisdiction vested in it or has exercised its jurisdiction illegally and with material irregularity. Interference may also be justified in a case where the order is perverse and if allowed to stand, will lead to failure of justice. Thus, in exercise of its powers under Section 115 of the Code, it is not competent to the High Court to correct errors of fact, however gross or even errors of law, unless such errors have relation to the jurisdiction of the Court which passed the impugned order. 8. In Pandurang Dhondi Chougule & Ors v. Maruti Hari Jadhav & Ors. AIR 1966 SC 153 the Apex Court held as followed: "(10) The provisions of Section 115 of the Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact, however gross they may be, or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. As Cls. While exercising its jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact, however gross they may be, or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. As Cls. (a), (b) and (c) of Section 115 indicate, it is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisonal jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceedings instituted before may arise in proceedings instituted before subordinate Courts which are related to questions of jurisdiction. It is well-settled that a plea of limitation or a plea of res judicate is a plea of law which concerns the jurisdiction of the court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court, and so, an erroneous decision on these picas can be said to be concerned with questions of jurisdiction which fall within the purview of S. 115 of the Code. But an erroneous decision on a question of law reached by the subordinate Court which has no relation to questions of jurisdiction of that Court, cannot be corrected by the High Court under Section 115." 9. Similar view has been taken by the Apex court in M/s. D.L.F. Housing and Construction Company (P) Limited, New Delhi v. Sarup Singh & Ors. 1969(3) SCC 807 and Managing Director (MIG) Hindustan Aeronatics Ltd. Balanagar Hyderabad & Ann v. Ajit Prasad Tarway, Manager (Purchase & Stores) Hindustan Aeronatics Ltd. Balanagar, Hyderabad, AIR 1973 SC 76. 10. The matter in hand thus calls for consideration and examination in view of the above settled position in law. 11. 1969(3) SCC 807 and Managing Director (MIG) Hindustan Aeronatics Ltd. Balanagar Hyderabad & Ann v. Ajit Prasad Tarway, Manager (Purchase & Stores) Hindustan Aeronatics Ltd. Balanagar, Hyderabad, AIR 1973 SC 76. 10. The matter in hand thus calls for consideration and examination in view of the above settled position in law. 11. The learned District Judge has passed the impugned order on the basis of the conclusions arrived at by him on the basis of the material before him (i) that the petitioner has already raised construction on a portion of joint land (of which the suit land is also a part) and he cannot be permitted to approbate and reprobate in view of the principle that one who seeks equity must do equity, (ii)that different vendees have raised construction on various plots carved out of the joint land measuring 4-10-0 Bighas and on objection to such construction was ever raised thus the suit has been filed to harass the respondent, (iii) that the constructions so raised have the effect of compulsory partition of the joint land having been effected and the petitioner by doing so has constructed the house on a portion of his choice and that other co-shareres have not been joined in the suit, therefore, the suit itself is not only bad for non-joinder of necessary parties but seems to be spiteful. 12. In so far as the learned District Judge has concluded that the suit is not only bad for non-joinder of necessary parties by also spiteful are concerned these are unwarranted and illegal and could not have been recorded expressly and explietly as done by the learned District Judge in an appeal against an order under Order 39 Rules 1 & 2 of the Code. While deciding an application under Order 39 Rules 1 &2 of the Code and the appeals arising out of the order passed on such application, only a prima facie view of the matter has to be taken and final and unrestricted conclusions have to be avoided. Therefore, the aforesaid conclusive findings recorded by the learned District Judge are held to be unsustainable. 13. The other conclusions arrived at by the learned District Judge and already set out here-in-above are prima facie permissible on the basis of the record. It is not in dispute that the petitioner has constructed a six-storeyed building on a portion of the joint land. 13. The other conclusions arrived at by the learned District Judge and already set out here-in-above are prima facie permissible on the basis of the record. It is not in dispute that the petitioner has constructed a six-storeyed building on a portion of the joint land. Prima facie, it is also not in dispute that such building is on an area of 10 biswas and different other constructions have also been raised on the joint land including one by a co-sharer over an area in excess of her share. The sales of the plots by co-sharers in the total joint land on which such constructions have been raised, are prima facie not disputed. Thus, in view of the aforesaid express and implied admissions, the conclusions under reference as arrived at by the learned District Judge cannot be said to be wholly unwarranted or illegal or perverse. 14. It was contended by the learned counsel for the petitioner that the impugned order is contrary to the ratio in case Nagesh Kumar v. Kewal Krishan, AIR 2000 HP 116 wherein this Court has held as under:- 18. In a cause when a co-sharer has sued for permanent prohibitory injunction restraining the other co-sharer from raising any construction over the land jointly owned by them, it is not just and proper to permit the co-sharer against whom the relief of injunction has been claimed, to continue/complete construction of a house/structure on such land.", 15. The facts of Nagesh Kumars case (supra) are distinguishable from the facts of this case. In the said case a house had been constructed on the joint land by the father of the plaintiff but it was claimed that such construction had been raised with the consent of other co- sharers, whereas in this case various constructions which have been raised on the joint land are not alleged to have been raised with the consent of co-sharers but according to the defendant, it is because of private partition. Secondly, in Nagesh Kumars case (supra) a suit for partition of the joint holding was admittedly pending whereas no suit/proceeding for partition is shown to have been instituted by any co-sharers in the case in hand. 16. Injunction is a discretionary relief. Secondly, in Nagesh Kumars case (supra) a suit for partition of the joint holding was admittedly pending whereas no suit/proceeding for partition is shown to have been instituted by any co-sharers in the case in hand. 16. Injunction is a discretionary relief. For exercising such discretion the Court has to weigh and compare the amount of mischief alleged by the party claiming injunction with the mischief that may be inflicted by grant of restraint order on the opposite party. The relief of injunction being equitable in character, it cannot be said that equity has no role at ail to play in considering the grant or refusal of injunction. The equitable considerations in the facts and circumstances of the case in hand weigh more in favour of the respondent than the petitioner. The ratio of Nagesh Kumars case (supra) is thus not attracted in the facts and circumstances of this case. 17. In view of the above discussion and the legal position, the impugned order does not call for interference by this Court except that the conclusion of the learned District Judge that the suit is not only bad for non-joinder of necessary parties but also spiteful shall not be treated as an expression of final opinion and the learned trial Judge shall decide the controversy regarding non-joinder of necessary parties to the suit uninfluenced by the above conclusion of the learned District Judge. 18. As result subject to the above observations, the revision petition is dismissed. 19. The parties, through their learned counsel, are directed to appear before the trial Court on 17.9.2001. -