P.L. Khatala vs K.C. Malhotra and Another

C.K. Mahajan, J.—The respondents raised a preliminary objection with regard to the maintainability of the petition. It is contended that the impugned order is appealable and the remedy by way of a petition under Article 227 is misconceived.

I have heard Counsel for the parties at some length on the preliminary objection. In the present case while granting the injunction the Trial Court did not discuss the requirement of a prima facie case and irreparable injury and it would be reasonable to hold that the order was passed u/s 151, CPC. The impugned Order being not a final order to my mind is not appealable and the present petition would be maintainable.

By way of the present petition the petitioner assails the Order of the Civil Judge dated 24th December, 2004. While issuing notice in the suit and the application under Order 39 Rules 1 and 2 and Section 151, CPC the Trial Court restrained the defendants 2 and 3 from dispossessing the plaintiff from the ground floor and the first floor of the suit property.

The petitioner assails the impugned order on the ground that the terrace was also a part of his tenancy and the Trial Court ought to have extended the restraint order to the terrace as well.

Heard learned Counsel for the parties and perused the impugned order. The application under Order 39 Rules 1 and 2 is pending hearing for a decision from the Trial Court. The impugned Order is not a final Order. The same appears to have been passed u/s 151, CPC. From the material placed on record, it prima facie appears that what was let out to the petitioner was the ground floor and the first floor of the suit property. The impugned order is a well reasoned order and does not suffer from any jurisdictional error or infirmity which calls for interference by this Court under Article 227 of the Constitution of India.

It is duty of the Court under Article 227 of the Constitution to see whether the Trial Court has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. The Court does not act as an Appellate Court. It is also not permissible to review or reweigh the evidence upon which the Trial Court purports to have passed the Order or to correct errors of law in decision. The petitioner has failed to make out any ground to warrant interference.

Dismissed Interim order is vacated.