Kanailal Bothra vs Babanji Pathak

This revision petition is directed against the order dated 17.5.89 passed by the District Judge, Goalpara, dismissing the Misc. Appeal No. 1 of

1988 and affirming the order dated 16.12.87 passed by the Munsiff, Bongaigaon in Title Suit No. 14 of 1987.

The opposite party filed a Title Suit No. 14 of 1987 against the first and third petitioners and predecessorininterest of the petitioner 2 (a) to 2 (e)

praying for permanent injunction restraining the opposite party from taking possession of the property until legal title is obtained. In the said suit, a

petition under Order 39 Rule 1 read with section 151 of the Code of Civil Procedure was also filed praying for temporary adinterim injunction.

The Munsiff by order dated 16.12.87 ordered that statusquo would be maintained as on 16.12.87 over the disputed land till the disposal of the

injunction petition. The Munsiff also directed to issue notice to defendants. However, before passing the adinterim injunction, neither the Munsiff

issued any notice nor he recorded any reason for granting the injunction without notice. The statusquo order is an order of injunction inasmuch as

by that statusquo order the opposite party was restrained from taking possession of the suit land. However, the Munsiff did not consider the

principles necessary for granting adinterim injunction.

Being aggrieved, the opposite party filed an appeal in the Court of the District Judge, Goalpara (Misc. Appeal No. 1 of 1988). The District

Judge also after hearing the parties upheld the order of the Munsiff, holding that the Munsiff issued notice on the defendants to show cause as to

why injunction shall not be granted and he simply asked the parties to maintain statusquo until further order. The District Judge allowed the order of

statusquo to continue. Hence, the petitioners filed the present revision petition.

I have heard both sides. Mr. S S Shanna, learned counsel for the petitioners has submitted that the appellate order is without jurisdiction

inasmuch as without discussing the cardinal principles of law regarding granting of injunction, the District Judge passed the impugned order. Mr.

Sharma has further submitted that without considering those principles of law, the Courts below had no jurisdiction to pass order in the nature of

statusquo, which is also an order of injunction.

Mr. A. Roy, learned counsel for the opposite party has supported the judgment stating that in the back ground of the case probably it was

necessary for the Courts below to pass such orders.

After considering the submissions of the learned counsel for the parties I find that the impugned judgment cannot be sustained in law inasmuch as

the District Judge failed to consider the material facts. Without considering the material facts, the District Judge had no jurisdiction and authority to

pass the impugned order allowing to continue the statusquo order passed by the Munsiff.

In view of the above, I set aside the order of District Judge, with following directions:

(1) The District Judge shall send back the case to the Munsiff, Bongaigaon, for disposal of the injunction petition as per the law;

(2) The Munsiff shall dispose of the injunction petition after hearing both sides and after considering all aspects of the matter and law regarding the

granting of temporary injunction. This shall be done within a period of one month from the date of receipt of the order.

Mr. Sharma has informed this Court that objection against the injunction petition has already been filed before the learned Munsiff.

For ends of justice, it is further directed that, till disposal of the injunction petition by the Munsiff, the opposite party shall not be disturbed in

respect of the suit premises. Send down the records immediately.