PUTTANANJAPPA Vs. MADAPPA

JUDGEMENT

(1.) THE only objection raised by the learned Counsel for the petitioner is, that the Appeal before the learned Civil Judge, Nanjangud, was not maintainable against the order rejecting the application praying for temporary injunction by the defendant. It could be only by an application of the plaintiff or if any relief is granted to the plaintiff, that could be challenged in Appeal. The Trial Court observed that the plaintiff obtained temporary injunction order on the allegation that the defendant is trying to interfere with the plaintiff's right of movement upon the Suit 'b' Schedule Galli and the defendant claims that the Suit Galli is part and parcel of that property. The plaintiff obtained temporary injunction and closed the drainage which was in existence as shown in the Rough-Sketch. The defendant sought to temporary injunction in the same suit on the same cause of action regarding closure of the drainage, which was in existence. The Trial court found that the temporary injunction is on the basis of the cause of action incidental to the pleadings of the plaintiff and under the guise of injunction order, the plaintiff has closed the drainage which was in existence preventing the flow of waste water from the house of the defendant.

(2.) RELIANCE is placed on the Judgment given in the case of VEERABHADRAPPA vs MAYAPPA, wherein, it was observed that, under sub-clause (a) of Order 39 Rule 1 CPC, any patty to the suit could be restrained by means of an order of temporary injunction. The word "any party" in Rule 1 (a) was interpreted to mean plaintiff only and not the defendant. Against grant of injunction in cases not covered by Order 39 CPC It was found that the appeal does not lie and hence the Revision could have been filed in the High Court.

(3.) THE provisions of Order 39 Rule 1 contemplate any party to the Suit could be restrained by means of an order of temporary injunction and refers to alienation of properly by any party xo the suit. Under Clause (c) and (d) of Order 39 Ru!e 1 and also under order 39 Rule 2 CPC, injunction can be granted against the defendant on the application of plaintiff. The application under Order 39 Rule 1, therefore, has to be moved by the plaintiff. Power under section 151 could be exercised even in cases which do not fall under Order 39 Rule 1 and 2 CPC for issue of injunction, but in that case, Appeal does not lie. The Appellate Court has not considered it to be a case of exercise of power under Section 151 of the Code of Civil Procedure.