LAWS(CHH)-2016-11-89

SHIVNATH, S/O RAMDAS Vs. JAGDISH PRASAD

Decided On November 10, 2016
Shivnath, S/O Ramdas Appellant
V/S
JAGDISH PRASAD Respondents

JUDGEMENT

(1.) In a suit filed by the petitioner / plaintiff for declaration of title and permanent injunction, the trial Court by its order dtd. 3/7/2013 allowed the application for temporary injunction and restrained the defendants from interfering with the possession of the petitioner plaintiff. Feeling aggrieved against the order granting temporary injunction, the respondents / defendants preferred a miscellaneous appeal under Order 43 Rule 1(r) of the CPC before the first appellate Court and that Court by its impugned order, set aside the order granting temporary injunction and remanded the matter for fresh consideration under Order 39 Rules 1 and 2 of the CPC, in accordance with law. Questioning the impugned order, this writ petition under Article 227 of the Constitution of India has been preferred by the petitioner plaintiff stating inter alia that the first appellate Court has committed an error of jurisdiction in allowing the appeal and setting aside the order granting temporary injunction without considering the appeal on merits.

(2.) Mr. A.K. Prasad, learned counsel appearing for the petitioner plaintiff, would submit that the appellate Court while hearing the appeal under Order 43 Rule 1(r) of the CPC has exceeded in its jurisdiction in remanding the matter without considering the appeal on merits. Since the order granting temporary injunction is a jurisdiction exercised by the trial Court, the miscellaneous appeal under Order 43 Rule 1(r) of the CPC is an appeal from the order as well as appeal on principle and discretion exercised by the trial Court, the order granting temporary injunction ought not to have been interfered with unless the discretion is said to have exercised by the trial Court, capriciously, arbitrarily or perversely. He would further submit that the first appellate Court while hearing the appeal under Order 43 Rule 1(r) of the CPC is a court of limited jurisdiction, it could have only considered the legality, validity and correctness of the order appealed against and could not have gone beyond that limit and could not have entertained the application under Order 41 Rule 27 of the CPC, and could not have set aside the order granting temporary injunction, as such, the impugned order deserves to be set aside.

(3.) Mr. A.N. Pandey, learned counsel appearing for the defendants respondents No.1 to 4, would support the impugned order and oppose the writ petition and would submit that such a document is absolutely necessary for just and proper disposal of appeal, therefore it has rightly be taken and the matter has rightly been remanded to the trial Court.