SUNEHARI Vs. CHATRU

JUDGEMENT

(1.) The petitioners instituted the present suit for a declaration that they were not bound by the partition effected by the revenue authorities as they had not been served in the partition proceedings. Along with the suit, the plaintiffs filed an application under Order 39 Rules 1 and 2, Code of Civil Procedure, for staying the dispossession in execution of the order of partition. The trial Court dismissed the application primarily on the ground that the plaintiffs had participated in the partition proceedings before the revenue officer and there was thus no prima facie case. The lower appellate Court affirmed the order of the trial Court in dismissing the application for temporary injunction. The plaintiffs have come up in revision.

(2.) Learned counsel appearing for the respondents on notice of motion urged that there had been proceedings pending between the parties since 1966 concluding in the decision of regular second appeal on September 16, 1983. It was unimaginable that the plaintiffs at various stages of the partition proceedings and even an appeal was filed inter alia on behalf of the plaintiffs against the mode of partition. It is evidently a question of fact whether the plaintiffs, who were respondents in the partition proceedings, were served. The concept of prima facie case for purposes of temporary injunction means that if what is averred is assumed to be correct whether the case disclosed a cause of action on which relief can be given by the Court. In other words, prima facie case means where the facts alleged add up to a cause of action or a case in which the plaintiff is entitled to the relief claimed by him. The Courts below would not have fallen into the error if this cardinal principle of law had been kept in mind. What they have proceeded to do is to prejudge the very issue and come to the conclusion that in all probability the petitioners had been served in the partition proceedings. For the reasons mentioned above, this view is unsustainable. I find there is a prima facie case and the balance of convenience is obviously in favour of the petitioners, in that if the decree for partition is carried out, it will disturb their possession.

(3.) For the aforesaid reasons, the revision petition is allowed and it is directed that the case shall proceed in accordance with law and till then the parties shall maintain status quo with regard to possession.