HAMUMAGA Vs. ANJANAPPA

JUDGEMENT

(1.) This matter was originally filed as MFA.No.236 of 1973. The respondent in the said appeal appeared and objected that the appeal was not maintainable as the order in question as not an order falling within the ambit of Or.39, R.2 or 4 of CPC. The preliminary objection was heard and a considered order was passed by this Court on 26-6-1973 holding that the order in question fell within the ambit of R. 3 of Or. 39 CPC. and within R. 1, 2 or 4 of the said Order, and therefore, the appeal was not maintainable. At that stage Sri V.S.Gunjal, the learned Counsel for the petitioner, prayed that the appeal may be converted into a civil revision petition and that prayer was granted. It is under these circumstances that this revision petition came to be registered.

(2.) The petitioner is plaintiff in O.S.No.44 of 1973 on the file of the Vacation Civil Judge, Kolar. He filed the said suit on 19-5-1973 praying for permanent injunction against the respondent in regard to his possession and management of certain lands. He filed LA. No. I with the plaint praying for issue of temporary injunction and the learned Vacation Civil Judge heard the Advocate, perused the affidavit filed in support of LA. No. I and ordered that in view 'of the fact that the plaintiff is a tenant and as per the will both the defendant and Puttamma were owners of the land in question, it was not, according to him, a fit case to grant an order of temporary injunction at that stage and a notice was necessary to be issued. He, therefore directed issue of notice to the defendant viz., respondent. The petitioner-plaintiff being aggrieved by the fact that ad interim injunction was not granted to him and notice was issued to the defendant viz., the respondent, filed a miscellaneous first appeal as mentioned earlier.

(3.) The defendant in the suit has got himself represented in this revision petition also. He has filed his counter-affidavit when the matter was pending as miscellaneous first appeal, to show that the petitioner-plaintiff is not entitled to temporary injunction. Sri V. S. Gunjal the Beamed Counsel for the petitioner, urged that the civil revision petition is maintainable as has been held in H. Bevis & Co. Kanpur V. Ram Behari AIR. 1951 All. 8. and tha though the Vacation Civil Judge has not thought it fit to grant ad inertim injunction order, this Court, in exercise of its power under Section 115 of the Code of Civil Procedure CPC. should pass an ad interim injunction order in view of the merits of the case of the petitioner-plaintiff. In this regard also, he drew support from the above cited decision.