KITTAMMA AND Vs. BSUBBA RAI AND

JUDGEMENT

(1.) The petitioners before me have filed Original Suit No. 7/1958 before the Court of the District Munsiff of Mangalore for a declaration that the order of eviction passed by the appellate authority (the Principal Subordinate Judge of South Kanara) in Civil Miscellaneous Appeal No. 11/1953 on his file is without jurisdiction, ultra vires and is a nullity, and for an injunction restraining the defendants (respondents before me) from executing the said order and taking possession of the house, door No. 22-4, with its outhouses and appurtenant land without payment of compensation for the said house. Along with the plaint they filed interlocutory application No. 14 of 1936 under Section 151 and Order 39 Rules 1 and 2 of the Code of Civil Procedure for the issue of a temporary injunction to restrain the respondents from executing the aforesaid eviction order and obtaining possession thereunder pending disposal of the suit. An ex parte injunction was granted, but the same was vacated after notice by the order dated 12-2-1958. The petitioners appealed against it in Civil Miscellaneous Appeal No. 2/1958 on the file of the Court of the District Judge, South Kanara. That appeal was also dismissed. The revision petition is directed against the said appellate order of dismissal.

(2.) The principal grounds of attack set out in the revision petition are: (1) the view of the lower appellate Court that the circumstances of the case do not disclose an injury within the meaning of Rule 2 of Order 39 of the Civil Procedure Code is wrong; (2) that even otherwise the courts below should have held that they have inherent power to issue injunction apart from Order XXXIX Rules 1 and 2 of the Civil Procedure Code and (3) that in any event there were substantial questions for investigation in the suit and the courts below have not exercised their discretion properly in refusing the injunction asked for.

(3.) In the arguments before me the contention that the courts have inherent jurisdiction to issue injunctions apart from the provisions of the Code of Civil Procedure has been abandoned. The learned counsel has confined his arguments to substantiate the contention that the petitioners have made out the existence of such an injury as is contemplated under Rule 2 of Order 39 justifying the issue of a temporary injunction pending the disposal of the suit claiming a permanent injunction. He has also contended that on the erroneous view that the principles of law prevented them from issuing an injunction in this case, the courts below have not at all exercised their discretion vested in them regarding the question whether or not such an injunction should Issue. The learned counsel for the respondents while controverting the suggestion that the case would fall under Rule 2 of Order XXXIX of the Code of Civil Procedure has further contended that the trial court in any event has considered the question in the case and has exercised its discretion against the petitioners.