GARAGIAH ALIAS KALIAH Vs. MANCHE GOWDA

JUDGEMENT

(1.) The question that arises for decision in this civil revision petition is whether the right to make an application under S.95 of the CPC. arises on the date when the order of injunction is granted. The matter arises in this way. The petitioner was the plaintiff in O.S.No.624 of 1963 on the file of the Court of the Munsiff, Ramanagaram and the respondent was the defendant in the said suit. In the said suit, the plaintiff obtained an order of temporary injunction against the defendant on 16-12-1963. That order was dissolved on 24-10-1964 in the appeal preferred by the defendant. The suit after trial was dismissed on 23-8-1966. There was no appeal against the decree dismissing the suit.

(2.) On 20-3-1867 the defendant filed I.A.No.15 under S.95 of the CPC., in the Court of the Munsiff, Ramanagaram for compensation on the following two grounds: (i) that the temporary injunction was applied for on insufficient grounds, and (ii) that the plaintiff's suit had failed and there was no reasonable or probable ground for instituting the same. The plaintiff contested the said application; among other grounds, he contended that the application was barred by limitation. The Court of the Munsiff upheld the contention of the plaintiff and dismissed the application on the ground that it was barred by limitation. On appeal preferred by the defendant to the Court of the Civil Judge, Bangalore District in M.A.No.3 of 1968, the order of the trial Court was reversed holding that the application was not barred by limitation and therefore the matter was remanded for enquiring on the question of the amount of damages. Against the said order the plaintiff has preferred the above revision petition.

(3.) Sri Adinarayana Rao, the learned Counsel for the petitioner urged that the defendant's right to apply under S.95 of the Code accrued when the order of temporary injunction was granted and that under Art.137 of the Schedule to the Limitation Act, 1963, the application is barred by time and that the view of the law taken by the Court below that the right to apply accrued only on the dismissal of the suit on 23-8-1966 is erroneous. It is common ground that the Article of Limitation that governs the application is Art.137 which provides a period of three years from the date when the right to apply accrues. The question therefore for determination is whether the right to make an application under S.95 of the Code accrues when an order of temporary injunction is granted. Sub-sec.(1) of S.95 of the Code which is the relevant provision reads thus: