Midche Linge Gowda and others vs Channamma and another

Nesargi, J.—This revision petition Is directed against the order passed on 6-6-1973 by the Civil Judge, Mandya, in M.A. No. 23 of 1973.

The petitioners are defendants 2 to 4 in O. S. No. 184 of 1973 lying on the file of the Munsiff. Mandya. 1st respondent is the plaintiff and the 2nd respondent is defendant 1. The parties to this petition will be referred as plaintiff and defendants 1 to 4 in the course of this order.

The few facts necessary for a decision in this petition may be narrated briefly as follows:

The plaintiff filed the above-mentioned suit on 20-3-1973 praying for issue of permanent injunction against all the defendants. Along with the plaint, 6he filed I. A. No. I under Order 39, Rule 1 of the C.P.C. praying for issue of temporary injunction pending disposal of the suit. On 20-3-1973 itself, the plaintiff requested the Munsiff to grant ad interim injunction, but as the records show, the learned Munsiff thought it fit to Issue notice to the defendants as provided in Rule 3 of Order 39. Civil P.C. The defendants appeared through their Counsel by 19-4-1973 and filed their written statements and objections to I. A. No. 1-The proceedings of the Munsiff for that day disclose that defendants were heard. Then the Munsiff recorded the following In the order-sheet.

Heard the Advocates. The party whosoever is in possession is to maintain the status quo. The parties to maintain status quo until an order on merits is passed.

Sd/- B. N. Lalge

For Issues and to hear I. A. No. 1 by

28-5-1973

Sd/- B.N.L.

If is this order that the plaintiff challenged In appeal in the Court of the Civil Judge, Mandya. The learned Civil Judge after entertaining the appeal and hearing both sides, has held that there was ample material before the Munsiff to enable him either to pass a temporary injunction order or to reject I. A. No. 1 and the Munsiff ought to have applied hi9 mind and exercised his discretion in regard to that aspect of the matter, but the Munsiff has failed to do so and, therefore, it was just that the appeal was to be allowed and the injunction order was to be issued. It is this order of the Civil Judge that is challenged in this petition.

Sri M. S. Gopal, the learned Advocate appearing on behalf of the petitioners, urged in the first instance that there was no order that can be said to lie either under Order 39. Rule 1 or Order 39. Rule 4, Civil P.C. passed by the Munsiff on 19-4-1973 and therefore, the order passed by the Munsiff on that day could not have been appealed against in the Court of the Civil Judge. Mandya. and hence, the appeal before the Civil Judge was not maintainable. It is on this basis he contended that the order passed by the Civil Judge is without jurisdiction and, therefore, it is to be set aside. He nextly urged that even if in the alternative it is held that the appeal was maintainable in the Court of the Civil Judge, Mandya. the Civil Judge ought not to have exercised his discretion for the first time but ought to have directed the Munsiff, Mandya. to exercise discretion vested in him by Order 39, Civil P.C. and proceed to pass suitable orders on I. A. No. 1.

Sri S. G. Dodda Kalegowda. the learned Advocate appearing on behalf of respondent 1 plaintiff vehemently contended that the order passed by the Munsiff on 19-4-1973 amounted to rejection of I. A No. 1, and. therefore, should be considered as an order passed under Order 39, Rule I. Civil P.C. and hence, it was appealable and the learned Civil Judge was right in entertaining the appeal and allowing the same. He nextly urged that even in case it is held that the appeal was not maintainable, this Court could in exercise of its revisional power u/s 115. Civil P.C. co into the merits of the matter and hold that the plaintiff was entitled to temporary injunction as opined by the Civil Judge, and. therefore, confirm that part of the order of the Civil Judge.

What is clear from the above stated facts Is that the plaintiff did not prefer any appeal against the proceedings that took place on 20-3-1973 in the Court Of the Munsiff, Mandya. It is to be remembered that the plaintiff asked for ad interim or ex parte injunction on that day. but the same was not granted and a notice as contemplated under Order 39, Rule 3. Civil P. C was issued. The proceedings dated 19-4-1973 in the Court.of the Munsiff, Mandva, have been already excerpted above. It is plain that so far as I. A. No. 1, the application of the plaintiff for grant of temporary injunction, is concerned, the Munsiff, even after hearing the arguments of Advocates on both sides, thought it fit to adjourn I. A. No. 1 for hearing to 28-5-1973. It is hence manifest that the Munsiff did not express any opinion in regard to the merits of I. A. No. 1 on 19-4-1973, but postponed hearing of I. A. No. 1 to 28-5-1973. The contention of Sri Doddakale Gowda is that the observations made by the Munsiff that the party whosoever is in possession, is to maintain the status quo until an order on merits is passed, would lead to a conclusion that the Munsif passed an order rejecting I. A. No. 1. I am unable to accede to this contention because of what the Munsiff has mentioned clearly later on, stating that hearing of I. A. No. 1 was to take place on 28-5-1973. If he had rejected the request of the plaintiff on I. A. No. the would not have postponed the hearing of I. A. No. 1 to a future date as there would have been no occasion to do so. It is, hence, to my mind, clear that the Munsiff simply, as a sort of observation and may be as a warning to the parties not to create any further dispute between themselves, mentioned in the order-sheet of that day that the party, whosoever was fin possession, should maintain the status-quo till an order on merits came to be passed. In view of this state of affairs. I hold that no order in I. A. No. 1 was passed by the Munsiff on 19-4-1973 and, hence, there is no scope for any contention that I. A. No. 1 was rejected on 19-4-1973 and therefore, that order was an order under Order 39, Rule 1, Civil P.C. and, hence, appealable under O. 43, R. 1 (r). Civil P.C. The contention of Sri M. S. Gopal is in my opinion, sound and is to be upheld.

Sri Doddakala Gowda, sought support from the decision in Saraju Prashad Singh Vs. Gangaprosad Shah and Others, It is seen therefrom that 11 that is laid down therein is that an order granting an interim injunction i. e. prior to issue of notice to the defendants, is an order under Order 39. Rule 1, Civil P.C. and, hence, appealable under O. 43. R. 1 (r). Civil P.C.. It is clear that this decision is not applicable to the facts and circumstances of the case. He then placed reliance on the decisions in H. Bevis and Co. Vs. Ram Behari and Others, ; L.D. Meston School Society Vs. Kashi Nath Misra, and United Club v. Nowgking Football Assn. AIR 1964 Ass 81. The decisions in H. Bevis & Co.''s case and L. D. Meston School Society''s case are rendered placing reliance on the decision reported in Amolak Ram and Another Vs. Sahib Singh, . In both these decisions, it is laid down that an order granting ex parte injunction i. e. prior to issue of notice to the defendants, is an order that falls under O. 39. R. 1. Civil P C. and, therefore, is appealable under Order 43, Rule 1 (r). Civil P.C. I am unable to see how these decisions can be of any assistance to the case of respondent I. The decision in United Club''s case AIR 1964 Ass 81 is rendered following the decision in L.D. Meston School Society Vs. Kashi Nath Misra, . Sri Doddakale Gowda attempted to urge that the facts and circumstances available in the decision in United Club''s case. AIR 1964 Ass 81 are similar to the facts and circumstances under consideration. What had happened in the said case was that the order in the first instance was granting of ad interim injunction and issuing of notice to the defendants. Thereafter the defendants appeared and filed their objections and the hearing of the injunction application was being postponed on the ground that evidence was to be recorded. In the meanwhile, the defendants preferred an appeal against the order granting ad interim injunction and it was contended that the appeal was not maintainable as final orders on the injunction application were still to be Passed in the lower Court. Their Lordships held that an appeal was maintainable and the fact that the defendants had appeared and filed their objections and their objections were about to be considered, would not be a ground coming in the way of filing an appeal by the defendants. Here again. I fail to see how this decision can be of any assistance to the contention put forward by Sri Doddakale Gowda.

In view of the foregoing reasons, I have no hesitation in holding that no order was passed by the Munsiff, Mandya, on 19-4-1973 and much less an order falling either under Order 39, Rule 1 or under Order 39. Rule 4 of Civil P.C. Hence, no appeal could have been preferred to the Court of the Civil Judge, Mandya, and. therefore. M. A. No. 23 of 1973 was not maintainable. The Civil Judge. Mandya. had no jurisdiction to entertain the appeal and pass the impugned order. It deserves to be set aside.

The last contention of Sri Doddakale Gowda that this Court, in exercise of its jurisdiction under S. 115 of Civil P. C, should uphold the decision of the Civil Judge in granting temporary injunction to the plaintiff, cannot be considered because the matter is clearly pending before the Munsiff and the parties have filed their statements and it is for the Munsiff to consider the material before him, apply his mind and exercise his discretion and then proceed to pass an order under Order 39, Rule 1, Civil P.C. The question of this Court exercising its jurisdiction under S. 115, Civil P.C. does not, therefore, arise.

In the result, this petition succeeds and is allowed with costs. The order passed by the Civil Judge Mandya, in M. A. No. 23 of 1973, is set aside. The trial Court is hereby directed to dispose of I. A. No. 1 within one month from this date.