G VCERABHADRAPPA Vs. MAYAPPA

JUDGEMENT

(1.) the revision petitioner is the plaintiff fore munsiff, channagiri in o.s. No. 44 of 1991, a suit filed by him for specific performance of the alleged agreement to sell in his favour in respect of the suit property. During the pendency of the said suit, the defendant filed an application under order 39, rules 1 and 2 read with Section 151, CPC numbered as i.a.iv for grant of temporary injunction against the plaintiff to restrain him from interfering with his peaceful possession and enjoyment of the suit property. That was opposed by the plaintiff. The learned niunsiff after considering the merits of the claim put forward by the defendant in the said application held that he had not made out a case for grant of injunction and consequently dismissed the said application. The defendant being aggrieved by the said order of the learned niunsiff preferred miscellaneous appeal No. 29 of 1991 on the file of civil judge, bhadravathi who came to the conclusion that the order of the niunsiff rejecting the prayer made by the defendant was perverse and arbitrary and caused injustice and therefore it was liable to be set aside and therefore lie allowed la. Iv filed by the defendant before the trial court and granted injunction in his favour restraining the plaintiff from interfering with his peaceful possession and enjoyment of suit properly. It is being aggrieved by this order of the learned civil judge that the plaintiff has preferred this revision petition.

(2.) the short points thai arise for consideration in this revision petition arc: (1)whether the defendant could seek for redress against the plaintiff by having resort to order 39, rules 1 and 2, CPC to protect his possession, and (2) if the defendant cannot seek for relief under order 39, rules 1 and 2, CPC, whether he could have preferred an appeal to the learned civil judge when his application for grant of injunction came to be dismissed.

(3.) unfortunately, both the courts below have not bestowed their attention on these important aspects that arise for consideration in a case of this kind. However, as the position in law is beyond any kind of dispute, the learned advocates were heard with reference u1 these two points.