Midche Linge Gowda And Two Others v. Channamma And Another

Nesargi, J.:— This revision petition is directed against the order passed on 6th June, 1973 by the Civil Judge, Mandya, in M.A No. 23 of 1973.

2. The petitioners are defendants 2 to 4 in O.S No. 184 of 1973 lying on the file of the Munsiff, Mandya. 1st respondent is the plaintiff and the 2nd respondent is defendant 1. The parties to this petition will be referred to as plaintiff and defendants 1 to 4 in the course of this order.

3. The few facts necessary for a decision in this petition may be narrated briefly as follows:—

The plaintiff filed the above-mentioned suit on 20th March, 1973 praying for issue of permanent injunction against all the defendants. Along with the plaint, she filed I.A No. I under Order 39 Rule 1 of the Code of Civil Procedure praying for issue of temporary injunction pending disposal of the suit. On 20th March, 1973 itself, the plaintiff requested the Munsiff to grant ad interim injunction, but as the records show, the learned Munsiff thought it fit to issue notice to the defendants as provided in Rule 3 of order 39 of the Code of Civil Procedure. The defendants appeared through their counsel by 19th April, 1973 and filed their written statements end objections to I.A No. I. The proceedings of the Munsiff for that day disclose that defendants were heard. Then the Munsiff recored the following in the order-sheet.

“Heard the Advocates. The party whosoever is in possession is to maintain the status quo. The parities to maintain status quo until an order on merits is passed.

Sd. B.N Lalge.

For issues and to hear I.A No. I by 28th May, 1973. Id/B.N.L”

4. It is this order that the plaintiff challenged in appeal in the Court of the Civil Judge, Mandya. The learned Civil Judge after entertaining the appeal and hearing both sides, has held that, there was ample material before the Munsiff to enable, him either to pass a temporary injunction order to reject I.A No. 1, and the Munsiff ought to have applied his mind and exercised his discretion in regard to that aspect of the matter, but the Munsiff has failed to do so and, therefore, it was just that the appeal was to be allowed and the injunction order was to be issued. It is this order of the Civil Judge that is challenged in this petition.

5. Sri M.S Gopal, the learned Advocate appearing on behalf of the petitioners, urged in the first instance that there was no order that can be said to lie either under Order 39 Rule 1 or Order 39 Rule 4 of the Code of Civil Procedure passed by Page: 1367the Munsiff on 19th April, 1973 and, therefore, the order passed by the Munsiff on that day could not have been appealed against in the court of the Civil judge, Mandya, and, hence, the appeal before the civil judge was not maintainable. It is on this basis he contended that the order passed by the Civil Judge is without jurisdiction and, therefore, it is to be set aside. He nextly urged that even if in the alternative it is held that the appeal was maintainable in the court of the Civil Judge, Mandya, the Civil Judge ought not to have exercised his discretion for the first time but ought, to have directed the Munsiff, Mandya, to exercise discretion vested in him by order 39 of the Code of Civil Procedure and proceed to pass suitable orders on I.A No. I.

6. Sri S.G Doddakale Gowda, the learned Advocate appearing on behalf of respondent 1 plaintiff vehemently contended that the order passed by the Munsiff on 19th April, 1973 amounted to rejection of I.A No. I. and, therefore should be considered as an order passed under order 39 Rule I of the Code of Cvl Procedure and, hence, it was appealable and the learned Civil Judge was right in entertaining the appeal and allowing the same. Te nextly urged that even in case it is held that the appeal was not maintainable, this court could in exercise of its revisionel power under Section 115 of the Code of Civil Procedure go in to the merits of the matter and hold that the plaintiff was entitled to temporary injunction as opined by the Civil Judge, and, therefore, confirm that part of the order of the Civil Judge.

7. What is clear from the above stated facts is that the plaintiff did not prefer any appeal against the proceedings that took place on 20th March, 1973 in the court of the Munsiff, Mandya. It is to be remember that the plaintiff asked for ad-interim or ex-parte injunction on that day, but the same was not granted and a notice as contemplated under Order 39 Rule (3) of the Code of Civil Procedure was issued. The proceedings dated 19th April, 1973 in the court of the Munsiff, Mandya, have been already excerpted above. It is plain that so far as I.A No. I the application of the plaintiff for grant of temporary injuction is concerned, the Munsiff, even after hearing the arguments of advocates on both sides, thought it fit to adjourn I.A No. I for hearing to 28th May, 1973. It is hence manifest that the Munsiff did not express any opinion in regard to the merits of I.A No. I on 19th April, 1973, but postponed hearing of I.A No. I to 28th May, 1973. The contention of Sri Doddakale Gowda is that the observations made by the Munsiff that Page: 1368the party whosoever is in possession, is to maintain the stat us quo ??? an order on merits is passed would lead to a conclusion that the Munsiff passed an order rejecting I.A No. 1. I am unable to accede to this contention because of what the Munsiff has mentioned clearly later, on stating that hearing of I.A No. 1 was to take place on 28th may, 1973. If he had rejected the request of the plaintiff on I.A No. 1 he would not have postponed the hearing of I.A No. 1 to a future date as there would have been no occas on to do so. It is, hence, to may mind clear that the Munsiff simply, as a sort of observation and may be as a warning to the parties not to create any further dispute between themselves, mentioned in the order-sheet of that day that the party, whosoever was in possession, should maintain the status quo till an order on merits came to be passed. In view of this state of affairs, I hold that no order on I.A No. I was passed by the Munsiff on 19th April, 1973 and, hence, there is no scope for any contention that I.A No. I was rejected on 19th April, 1973 and, therefore, that order was an order under Order 39 Rule 1 of the Code of Civil Procedure and, hence appealable under Order 43 Rule 1(r) of the Code of Civil Procedure. The contention of Sri M.S Gopal is, in my opinion, sound and is to be upheld.

8. Sri Doddakale Gowda, sought support from the decision in Saraju Prashad Sing v. Gangaprsad Shah A.I.R 1951 Cal 446. It is seen therefrom hat all hat is laid dawn therein is that an order granting an interim injunction, i.e, prior to issue of notice to the defendants, is an order under Order 39 Rule 1 of the Code of Civil Procedure and, hence, appealable under Order 43 Rule 1(r) of the Civil Procedure Code. It is clear that this decision is not applicable to the facts and circumstances of the case. He then placed reliance on the decisions in H. Bevis and Company v. Ram Behari A.I.R 1951 Allahbad, 8, L.D Meston School Society…Defendant v. Kashi Nath Misra…Plaintiff . A.I.R 1951 Allahbad, 558 and United Club v. Nowgking Football Association and Company's case A.I.R 1964, Assam, 81 and L.D Meston School Society's case A.I.R 1951 Allahbad, 558 are rendered on placing reliance on the decision reported in 7 Allahabad 550. In both these decisions, it is laid down that order granting ex-parte injunction, i.e, prior to issue of notice on he defendants, is an order that falls under Order 39 Rule 1 of the Code of Civil Procedure and, therefore, is appealable under Order 43 Rule 1(r) Page: 1369of the Cede of Civil Procedure. I am unable to see how these decisions can be of any assistance to the case of respondent 1. The decision in United Club's case A.I.R 1964, Assam, 81 is rendered on following the decision in L.D Meston School Society's case A.I.R 1951 Allahbad, 558. Sri Doddakale Gowda attempted to urge that the facts and circumstances available in the decision in United Clubs' case A.I.R 1964, Assam, 81 are similar to the facts and circumstances under consideration. What had happened in the said case was that the order in the first instance was granting of ad-interim injunction and issuing of notice to the defendants. Thereafter, the defendants appeared and filed their objections and the hearing of the injunction application was being postponed on the ground that evidence was to be recorded. In the meanwhile, the defendants preferred an appeal against the order granting ad-interim injunction and it was contended that the appeal was not maintainable as final orders on the injunction application were still to be passed in the lower court. Their lordships held that an appeal was maintainable and the fact that the defendants had appeared and filed their objections and their objection were about to be considered, would not be a ground coming in the way of filing an appeal by the defendants. Here again, I fail to see how this decision can be of any assistance to the contention put forward by Sri Doddakale Gowda.

9. In view of the forgoing reasons, I have no hesitation in holding that no order was passed by the Munsiff, Mandya, on 19th April, 1973 and muchless an order falling either under order 39 Rule 1 or under Order 39 Rule 4 of the Code of Civil Procedure. Hence, no appeal could have been preferred to the court of the Civil Judge, Mandya, and, therefore, M.A No. 23 of 1973 was not maintainable. The Civil Judge, Mandya, had no jurisdiction to entertain the appeal and pass the impugned order. It deserves to be set aside.

10. The last contention of Sri Doddakale Gowda that this court, in exercise of its jurisdiction under Section 115 of the Civil Procedure Code, should uphold the decision of the Civil Judge in granting temporary injunction to the plaintiff, cannot, be considered because the mater is clearly pending before the Munsiff and the parties have filed their statements and it is for the Munsiff on consider the material before him, apply his mind and exercise his direct on and then proceed to pass an order under Order 39 Rule 1 of the Code of Civil Procedure. The question Page: 1370of this court exercising its jurisdiction under Section 115 of the Civil Procedure Code does not, therefore, arise.

10. In the result, this petition succeeds and is allowed with costs. The order passed by the Civil Judge, Mandya in M.A No. 23 of 1973, is set aside. The trial court is hereby directed to dispose of I.A No. I within one month from this date.