BUTCHALAH Vs. VENKATESWARLU

JUDGEMENT

(1.) The Subordinate Judge at Narsaraopet on appeal directed the defendant (the Revision Petitioner herein) to restore a spout V in the plaint Plan and the defendant was restrained from interfering with that device peding suit. That order is attacked in the revision petition as having been passed by the Court in excess of jurisdiction and void. It is argued such an order pending the trial determines the issue finally and leaves nothing more to be decided and in an interlocutory application the Court ought not to have passed such an order which amounts to prejudging the issue in the suit.

(2.) The plaintiff alleged the defendant removed the spout at point V and closed the hole" which results in the obstruction of the rain water. Therefore pending the suil a mandatory injunction was sought to restore the spout to its quoandan position. The District Munsif dismissed the interlocutory petition on the question of "convenience" but in appeal the petition was ordered. The question at issue is whether Couts have the power to order such mandatory injunction pending trial of the suit. In England there was a doubt about such a power prior to the paising of judicature Act. Such doubts were far removed under section 25 of the Judicature Act of 1875. The dicta in cases decided prior to the Judicature Act do however show the existence of such power. In ROBINSON Vs. LORD BYRON by a prohibitory order Lord Byron was directed as an interim measure not to over- flow or strave the plaintiff.s mill by the use of sluice and dams under his control pending the trial of the suit. In ALLPORT Vs. SECURIY Co. LTD. the defendant was directed in the Building to reconstruct the staircase Pending trial. In [HERVEY Vs.SMITH] a contrivance on a party wall to let out flues for smoke the defendant was interdicted by an order of the Court to remove the obstructing tiles installed. The Equity Courts in England thus even before the Judicature Act understood to have had power to grant relief in interlocutory application- In recent times Lord Uthwalt said in the case of WINGER GARDEN THEATRE LTD. Vs. MILLENNIUM PRODUCTS LTD in the context of equity observed "in a court of equity wrongful acts are no passport to favour."

(3.) In India such a power to grant under Order 39 of Code of Civil Procedure was not doubted. In KANDASWAMI Vs. SUBRAHMANIA a Division Bench of the Madras High Court held that under Order 39 Rule 2 of the Code of Civil Procedure the Courts have power to issue temporary injunctions. In Israil vs. Rahman a part of building, constructed after the knowledge of injunction was directed to be pulled down In Govardhan Singh vs. Mulkh rai a portion of the business premises was directed to be demolished and reconstructed. Instances thus are legion and I do not wish to burden the judgment with more of them The order in appeal shows the circumstances which impelled the appellate Court to pass the directions and I see no reason to interfere with the order passed b> the lower Court. The Civil Revision Petition is therefore, dismissed. No order as to costs. M.S.K.S.C.R P. Dismissed.