GAJRAJ SINGH Vs. RAMKUMAR

JUDGEMENT

(1.) Petitioners, who are defendants in the suit, have presented this petition under Art. 227 of the Constitution of India, for quashing of the order (Annexure P/2), dated 28-8-1981, passed in Misc. Civil Appeal No. 41 of 1981, by First Additional Judge to the Court of District Judge, Vidisha, camp Basoda, whereby the petitioners have been restrained from interfering with the possession of the plaintiffs/respondents Nos. 1 and 2, over the suit land.

(2.) The material facts leading to this petition are thus the respondents Nos. 1 and 2/ plaintiffs instituted a suit for declaration of title and permanent injunction in relation to the land situated at survey No. 51/1, area 3.547 hectares, in village Jafrabad Pipariya, Tehsil Basoda. The plaintiffs by an application under O. 39 Rr. 1 and 2, CPC, prayed for an order of grant of temporary injunction. The trial Court having not been satisfied on the material, did not pass an ex parte temporary injunction but directed issue of notice to the defendants. The plaintiffs aggrieved of the order of issuance of notice, preferred an appeal under O. 43, R. 1(r), CPC. The appellate Court after taking certain documents on record on an application under O. 41, R. 27, finally decided the application under O. 39 Rr. 1 and 2 granting temporary injunction, restraining the defendants/petitioners from interfering with the possession of the plaintiffs over the suit land. Aggrieved of this order petitioners have approached this Court.

(3.) Shri Arun Mishra, learned counsel for petitioners, attacked the order on two counts firstly, the appeal before the lower appellate Court was not maintainable, as the order under appeal was not an order of refusal or grant of temporary injunction, but was one under O. 39, R. 3, CPC, which was not appealable. Counsel pressed into service. H. Bevis and Co. v. Ram Behari, AIR 1951 All 8; Iqbalsingh v. Chanan Singh, AIR 1966 Pun 165; Khusilal v. Gorelal, AIR 1986 MP 47. It was next contended that even if the lower appellate Court was of the opinion that the appeal was maintainable, it could not have finally granted the temporary injunction till the decision of the suit, as it would amount to hold up the proceedings pursuant to the reply to show cause notice; therefore, the appellate Court ought to have remitted the case to trial Court for passing order on the application under O. 39, Rr. 1 and 2. To support the contention, reliance was placed on a decision of this Court in case of Chhaganlal v. Niwasdas, AIR 1963 MP 208.