SANJU DEVI KASHYAP Vs. UMA BAI

JUDGEMENT

(1.) The petitioners/defendants take exception to the order of the Miscellaneous Appellate Court granting the miscellaneous appeal filed under Order?43, Rule?1(r) of Civil Procedure Code by the plaintiffs and remanding the matter to the trial Court to decide the application filed by the defendants under Order?39, Rule?1?& 2 of Civil Procedure Code afresh keeping in view the observations made therein. [For the sake of convenience, the parties would be referred hereinafter as per their nomenclature shown in the suit filed before the trial Court].

(2.) The respondents/plaintiffs filed a suit for declaration of title and also for recovery of possession from the defendants in which the defendants No. 1 to 3/petitioners herein filed an application under Order 39, Rule 1 & 2 Civil Procedure Code stating inter-alia that the plaintiffs be restrained from interfering with their peaceful possession and they be further restrained from harvesting the crops. That application was granted by the trial Court by order dated 08.08.2017 holding that the defendants have prima-facie case and balance of convenience lies in their favour and since they are in possession of the suit property, if temporary injunction is not granted, they will suffer irreparable loss and restrained the plaintiffs from interfering with the peaceful possession of the defendants which was assailed by the plaintiffs under Order 43, Rule 1(r) CPC. The miscellaneous appellate Court while hearing appeal against the order granting temporary injunction, by its impugned order, held that the question is to whether the defendants' application under Order 39, Rule 1 & 2 Civil Procedure Code particularly Clause-(c) was maintainable or not has not been examined by the trial Court and, therefore, remanded the matter to the trial Court for hearing the application afresh keeping in view the observations contained in paragraph 17 and 19 of the impugned order. Questioning that order this writ petition has been preferred.

(3.) Mr. Ravindra Sharma, learned counsel appearing for the petitioners/defendants would submit that the miscellaneous appellate Court is absolutely unjustified in setting aside the order of the trial Court granting temporary injunction and further remanding the matter to the trial Court for hearing the matter afresh is unsustainable and bad in law and, therefore, the impugned order is liable to set aside.