VINCENT Vs. AISUMMA

JUDGEMENT

(1.) This revision is by the defendants whose application for an order of mandatory injunction was dismissed by the Trial Court. Learned counsel for the respondent plaintiff raised a preliminary objection that the application for revision cannot be entertained in view of the hurdle contained in S.115 (2) of the Code of Civil Procedure (for short 'the Code'), since an appeal lies against the impugned order.

(2.) Facts are the following: In a suit filed by the plaintiff for perpetual injunction restraining the defendants from entering upon the plaint schedule property, an application for a temporary injunction was also filed. The temporary injunction was to restrain the defendants from trespassing upon the plaint schedule property or from cutting open a pathway through the said property. The Trial Court granted an ex parte interim injunction order. When the defendants entered appearance and filed objections, the court vacated the ex parte order and dismissed the application for temporary injunction. Neither the appellate court nor the revisional court disturbed the order dismissing the application for injunction. Defendant's case that they were using a portion of the plaint schedule property as a pathway appeared to the court to be prima facie true. But defendants complained that the plaintiff taking advantage of the ex parte interim order had put up a fence in such a way as to block the pathway claimed by them. An application for directing the plaintiff to remove the fence so put up was filed in the Trial Court. The application was dismissed by the lower court. Hence this Civil Revision Petition at the instance of the defendants.

(3.) Learned counsel who raised the preliminary objection contended that the impugned order falls within the scope of O.39 R.1 of the Code, although the defendants had quoted only S.151 in their application. It is not disputed that if the order has been passed under O.39 R.1 of the Code, the remedy of the defendants is to file an appeal since an appeal is proved in O.43 R.1(r) of the Cede against such an order. I shall now proceed to examine the question whether the order under attack bad been passed under O.39 R.1 of the Code.