THOMAS BEN Vs. PARVATHY OMMIN

JUDGEMENT

(1.) The 5th defendant in a suit, which was stayed under Act I of 1957, is the petitioner in the Civil Revision Petition and the revision arises out of an application by the plaintiffs in the suit for injunction restraining the defendants from constructing any building in the suit property. Before the Trial Court the 5th defendant gave an undertaking that the building he was constructing would be removed without raising any claim for compensation in case the plaintiffs established their claim to recover possession of the property and the learned Munsiff on the basis of this undertaking dismissed the petition for injunction. The plaintiffs took up the matter in appeal to the lower appellate court, which reversed the decision of the Trial Court and issued an injunction restraining the 5th defendant from putting up a building in the property pending suit. The 5th defendant questions the correctness of this decision of the lower appellate court.

(2.) The lower appellate court has relied on a decision of the Calcutta High Court in Israil v. Samset Rahman ( AIR 1914 Cal. 362 ) in support of its judgment. Since it involves a principle of law and the same is likely to arise frequently in our courts, I would quote an extract from the judgment and would consider its effect. The relevant passage at page 363 reads:

(3.) In this view I am inclined to hold that the Calcutta decision has no application to the facts of the present case and therefore I hold that the decision of the lower appellate court is not correct. But, now that Act I of 1 957 has been repealed and the stay of the suit has been vacated, I do not consider it proper to straightaway restore the order of the Trial Court. Therefore I allow the Civil Revision Petition and direct the lower court to consider the question afresh under the present circumstances. The suit being an old one I direct the lower court to dispose of the same within four months of the receipt of the records by it. The lower court will consider indisposing of the petition for injunction whether it will accord with balance of convenience to issue an order of injunction or not in view of the fact that the suit is to be disposed of within four months and also in view of the new legislation regarding Agrarian Relations. The parties will bear their respective costs.