RANJIT KUMAR SAIKIA Vs. JUGAL SAHU

JUDGEMENT

(1.) In this application under Article 227 of the Constitution of India the petitioners have challenged the first appellate judgment and order dated 09.09.2014 passed in Misc. Appeal No.3/2013 granting temporary injunction in favour of the plaintiff restraining the defendants from making any further construction or not alienating the property in favour of third party during pendency of the suit. The learned trial court had rejected the prayer for injunction of the plaintiff against which the aforesaid Misc. Appeal was preferred.

(2.) The sole opposite party as plaintiff instituted Title Suit No.8/2013 in the court of learned Munsiff No.1 at Jorhat praying, inter alia, for a decree declaring his right, title and interest over the suit land described in Schedules -A & B to the plaint and also for permanent injunction along with other prayers. Appearing in the case the defendants not only filed a written statement but also raised a counter -claim for declaring their right, title and interest etc. over the suit land.

(3.) The plaintiff also filed an application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure in the aforesaid suit praying for temporary injunction during pendency of the suit. The learned trial court by judgment and order dated 25.03.2013 passed in Misc. (J) Case No.7/2013 rejected the prayer. Aggrieved, the plaintiff instituted Misc. Appeal No.3/2013 before the learned First Appellate Court. It appears from the impugned judgment that in course of hearing of the appeal the defendants raised an issue that the plaintiff had instituted earlier a similar suit against the same set of defendants for declaration of their right, title and interest and that the suit was dismissed for default. Under such circumstances, subsequent suit on the same prayer was not maintainable. The learned First Appellate Court considered the same and arrived at the following finding : -