C P JOSEPH Vs. M V PAUL

JUDGEMENT

(1.) The revision petitioners are defendants Nos. 5 and 6 in O. S. No. 116 of 1968 of the Sub Court, Trichur. Respondents No. 1 and 2 instituted the suit for a declaration that the ordination of the 3rd respondent as Priest and Metropolitan of the Church of the East in India was void and inoperative and for an injunction restraining him from functioning in the said capacity in relation to the plaint mentioned church. The basis for the suit was the alleged suspension of late Mar Thoma Dharmo from functioning as Metropolitan. I. A. No. 1847 of 1968 was filed for an interim injunction. Pending disposal of the suit, a temporary injunction was issued. The third respondent preferred an appeal, C. M. A. 12 of 1969 against the said order. The order was confirmed with some modifications. The third respondent filed C. R. P. No. 1410 of 1971 before this Court. This Court confirmed the order but observed that the revision petitioner would be entitled to continue as Administrator till the disposal of the suit. In an application for review filed by the first respondent further clarifications were made in respect of the nature and extent of the 1st respondent's authority While the above order was pending, a representative suit was filed as O. S. No. 8 of 1965 of the District Court, Trichur challenging the suspension of Mar Thoma Darmo. In A. S. No. 52 of 1971 filed against the decree therein this court declared the suspension as inoperative. Basing on the above decision the present petitioners filed I. A. No. 2009 of 1975 before the Sub Judge, Trichur for vacating the order of temporary injunction issued in O. S. 116 of 1968. The learned Subordinate Judge dismissed the application holding that the matter would be final only after the disposal of the appeal which had been filed by the aggrieved party in O. S. 8 of 1965 before the Supreme Court. Against the order of dismissal, C M. A. 52 of 1976 was filed before the District Judge, Trichur. The learned Addl. District Judge, Trichur who disposed of the case did not consider the question on the merits but held that as the final order on the application for injunction was issued by this Court, this court alone is competent to vacate or modify the order of injunction. The above conclusion is challenged by the revision petitioners.

(2.) Ordinarily when there is an appeal from a decree of the Trial Court, the said decree gets merged in the decree of the appellate court and any petition to amend the said decree should be filed in the appellate Court. This is so when the amendment or the correction is based on the materials available when the original decree or order was passed. But what petitioners pray is that the order of injunction which was finally confirmed by this court should be cancelled since the challenge against the appointment of the third respondent can no longer stand in view of the decree of this court in A. S. 52 of 1971. The variation or cancellation is sought not on the materials which were available when C. R. P. 1410 of 1971 was disposed of but due to the supervention of the decree of this court which has the effect of removing the irregularity, if any, attached to the appointment of the third respondent. The ordinary rule that the appellate Court is the court which is competent to amend a decree after its confirmation in appeal has no application in a case of this kind. On the other hand, O.39 C.P.C. provides) for the contingency.

(3.) O.39 of Civil Procedure Code deals with the issue of interim injunction. R.1 of O.39 details when an interim injunction is to be issued and also mentions the procedure. R.3 states that the court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party. R.4 deals with discharge and variation of the order of injunction and states that any order for an injunction may be discharged or varied, or set aside by the Court, on application made thereto by any party to the suit. The petition filed in the present case comes within the scope of R.4. What the petitioners seek is the variation or cancellation of the order on the ground that there has been a change in the circumstances which justifies the vacating of the injunction. The question is whether such a petition should be filed before the appellate court or the revisional court. Although O.39 does not specifically make mention of the forum for filing a petition of the present nature there are sufficient indications in the Code for holding that the petitioner should approach the court of first instance. It goes without saying that a petitioner who approaches the court with a prayer for vacating an order of injunction which has been confirmed in appeal and revision has to produce materials before the court in support of the prayer. The court concerned has to assess such materials. The powers of an appellate court to admit and assess evidence are confined to the provisions of O.41 R.27 CPC. The said provision stands extended to appeals against orders in view of O.43 R.2. The revisional jurisdiction of the court is also restricted in scope to what is provided in S.115 of the Civil Procedure Code. It follows that this Court in its revisional jurisdiction is not expected to admit or assess additional evidence or consider other materials for the purpose of taking action under O.39 R.4 Such assessment of fresh materials has to be done by the court of first instance.