CHATHAKNI RAMULU Vs. CHATHAKNI GANGA RAM

JUDGEMENT

(1.) THIS revision petition has been directed against the order of the District Judge at Nizamabad, dated 27 -9 -1951, by which he has dismissed the appeal of the present Petitioner on the ground that it was premature and does not lie. We have heard the arguments of the learned advocates of the parties at great length. We are of the opinion that this revision petition should succeed and the judgment of the lower Court be set aside.

(2.) THE facts briefly are: that a temporary injunction under the provisions of Order 39 R. I was granted in favour of the Plaintiff -Respondent by the trial Court. The Petitioner filed an appeal against that order in the Court below. The Court came to the conclusion that the appeal is not maintainable as the Petitioner had a remedy of representing his case as to why the temporary injunction should not be granted before the trial Court; and notice to show cause was actually issued by that Court. We do not agree with this contention. The Defendant -Petitioner has two remedies open: either to go before the trial Court and show that there was no cause for the issue of the injunction or file an appeal under the provisions of Order 43, R. 1 (r). The Court cannot compel him to choose any particular remedy When the Petitioner had chosen the course of filing an appeal before the lower Court, he ought to have been given a hearing and the appeal should have been disposed of according to law. We remand the case to the lower Court and direct that the appeal be disposed of according to law. We allow costs to the revision -Petitioner. Advocate's fee Rs. 30.