KEDAR NATH Vs. MUNICIPAL COUNCIL, TODA BHIM

JUDGEMENT

(1.) HEARD learned counsel for the petitioner. Perused the order dated 14.1.1987 passed by the trial Court as well as the order dated 24th March, 1987, passed by the First Appellate Court. Application under Order 39, Rule, 1 and 2 was moved by the petitioner for the grant of injunction against the Municipality. Ex parte injunction was granted on 4.8.1986. The trial Court after hearing both the parties vacated the ex parte temporary injunction. During the pendency of the application under Order 39, Rules 1 and 2 an application for amendment was moved by the petitioner in the appellate Court which was hearing the appeal against the interlocutory order. The appellate Court held that in an appeal against the interlocutory order application under Order 6, Rule 17 cannot be entertained particularly till the matter is pending with the trial Court. The appeal is still pending in the appellate Court. Being aggrieved with the order of the appellate Court relating to the application under Order 6, Rule 17, the revision petition has been preferred.

(2.) IN an appeal against an interlocutory order relating to the grant of temporary injunction an application under Order 6, Rule 17 for the amendment of the pleadings does not lie. The appellate Court was justified in holding that such application cannot be entertained by the Court hearing an appeal under Order 43, Rule 1. In such circumstances, the appellate Court may direct the petitioner to move for modification of the stay order before the trial Court without disturbing the order originally passed by the trial Court. I do not find any force in the submissions made by Mr. Keshote. It is further observed that the application under Order 6, Rule 17 shall be decided by the Court below at a proper time in a proper way, and, if the petitioner further thinks proper he can move the application for the modification of the stay order taking the grounds which he is taking under Order 6, Rule 17, C.P.C. At this stage the grounds which he wants to raise by way of amendment of the pleadings cannot be entertained also.