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Md. Mazibulla Mandal and ors. Vs. Md. Abbas Ali and ors. - Court Judgment

LegalCrystal Citation
Subject;Property;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revision No. 357 of 1998
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Sections 107 and 115 - Order 43, Rule 1
AppellantMd. Mazibulla Mandal and ors.
RespondentMd. Abbas Ali and ors.
Appellant AdvocateB.C. Das, Adv.
Respondent AdvocateB.B. Narzary, Adv.
DispositionRevision petition dismissed
Prior history
H.K.K. Singh, J.
1. Heard Mr. B.C. Das, learned counsel for the petitioners as well as Mr. B.B. Narzary, learned counsel for the respondents.
2. This Revision Petition under Section 115 of the CPC is against the appellate judgment & order dated 12.8.1998 passed by the Civil Judge (Sr. Divn.). Darang Mangaldoi in Misc. (A) No. 6/98 and Misc (J) No. 35/98. By the aforesaid impugned order, the learned Appellate Court set aside the order dated 28.5.1998 passed by the Civil Judge (Jr. Divn.)
Excerpt:
- - das, learned counsel for the petitioners as well as mr. das, learned counsel for the petitioners as well as mr. narzary, the learned counsel for the respondents relying upon a number of decisions on the point of the extent of the power of the revisional court while dealing with the temporary injunction orders, passed by the subordinate court, submitted that the impugned order was passed after considering well established principles at the time of grant of temporary injunction orders. , air 1993 sc 276. and the learned counsel submitted that the findings and orders of the trial court as well as of the appellate court should not be disturbed by this court in exercise of the revisional jurisdiction. conclusions reached by the courts below for the purpose of grant of temporary..........singh, j. 1. heard mr. b.c. das, learned counsel for the petitioners as well as mr. b.b. narzary, learned counsel for the respondents.2. this revision petition under section 115 of the cpc is against the appellate judgment & order dated 12.8.1998 passed by the civil judge (sr. divn.). darang mangaldoi in misc. (a) no. 6/98 and misc (j) no. 35/98. by the aforesaid impugned order, the learned appellate court set aside the order dated 28.5.1998 passed by the civil judge (jr. divn.) no. 1 in misc. (j) case no. 34/96 arising out of title suit no. 50/96 and thereafter issued a temporary injunction in favour of the plaintiff.3. the petitioners herein are the defendants in the title suit no. 50/96. the title suit was brought by the respondents herein as plaintiffs for declaration of title.....
Judgment:

H.K.K. Singh, J.

1. Heard Mr. B.C. Das, learned counsel for the petitioners as well as Mr. B.B. Narzary, learned counsel for the respondents.

2. This Revision Petition under Section 115 of the CPC is against the appellate judgment & order dated 12.8.1998 passed by the Civil Judge (Sr. Divn.). Darang Mangaldoi in Misc. (A) No. 6/98 and Misc (J) No. 35/98. By the aforesaid impugned order, the learned Appellate Court set aside the order dated 28.5.1998 passed by the Civil Judge (Jr. Divn.) No. 1 in Misc. (J) case No. 34/96 arising out of Title suit No. 50/96 and thereafter issued a temporary injunction in favour of the plaintiff.

3. The petitioners herein are the defendants in the Title Suit No. 50/96. The Title Suit was brought by the respondents herein as plaintiffs for declaration of title and injunction in respect or the Suit land described at the plaint the Schedule-C. The case of the plaintiffs is that they inherited the suit land from their forefathers and they are in possession of the same. The defendants contested the suit basically on the ground that they purchased the land from the predecessor-in-interest or the plaintiffs and they are in possession of the land. There were some criminal proceedings with regard to the possession etc. over the suit land and ultimately, the plaintiffs filed the suit.

4. At the time of filing of the suit, the plaintiffs also filed an application for a temporary injunction which was registered as Misc. Case (J) No. 34/96 and after hearing one of the defenddants (defendant opposite party No. 2) who lodged a caveat, passed an order of the injunction dated 10.10.1996 thereby restraining the defendants from dispossessing the plaintiffs from the suit land.

5. Against the aforesaid order of temporary injunction the defendants filed an appeal and the Appellate Court namely. Civil Judge (Sr. Divn.), Darang, by order dated 6.2.1997 set aside the temporary injunction order dated 10.10.1996 passed by the Trial Court and the Appellate Court directed the Trial Court to hear the parties before passing any order according to law. The Appellate Court set aside the order passed by the Trial Court the order passed by the Trial Court only on the ground that there was no sufficient reason for passing the temporary injunction order ex-parte. Thereafter, after hearing the parties the parties and also considering the pleadings and documents filed by the parties and after recording evidence of some witnesses, the learned Trial Court under its order dated 28.5.1998 passed an order making the temporary injunction order passed on 10.10.1996 absolute. Against this order also, appeal was carried by the defendants. The learned Appellate Court namely, Civil Judge (Sr. Divn.) passed the impugned order dated 12.8.1998, which is the subject-matter of the present petition. By the aforesaid impugned order dated 12.8.1998 the learned Appellate Court set aside the order dated 28.5.1998 of the Trial Court holding inter alia that the Trial Court committed an error by making absolute a non-existent ex-parte order passed on 10.10.1996. As noted above, the order dated 10.10.1996 had already been set aside by the Appellate Court by an order dated 6.7.1997. Again, after setting aside the impugned order dated 28.5.1998 the learned Appellate Court passed a temporary injunction order restraining the defendants from dispossessing the plaintiffs from the suit land.

6. I have heard Mr. B.C. Das, learned counsel for the petitioners as well as Mr. B.B. Narzary, learned counsel for the respondents.

7. Mr. B.C. Das contended that the learned Appellate Court acted in excess of its jurisdiction by passing a temporary injunction order even when the Appellate Court itself had set aside the original temporary injunction order dated 8.5.1998 on the ground that Trial Court cannot make non-existent order absolute. Thus, according to the learned counsel, when the temporary injunction order of the Trial Court which was the subject matter in the Appeal having been set aside. Appellate Court had no jurisdiction to pass any order of injunction afresh.

8. An order of temporary injunction under Rule 1 or Rule 2 of Order XXIX CPC is appealable under Rule 1(r) of Order XLIII. It is admitted by the learned counsel of both sides that the present interim order has been passed under Rule 1 or Rule 2 of Order XXXIX. Hence, this order of injunction is appealable. Now, the question is, power of Appellate Court for hearing an appeal against an order of temporary injunction. Section 107 of the CPC prescribes the power of the Appellate Court. Sub-section (1)(a) provides that the Appellate Court shall have the power to determine the case finally and under Sub-section (2) of Section 107, it is prescribed that the Appellate Court shall have the same power and shall perform as nearly as may be the same duties as are conferred and imposed by the Court of Trial Court. Again, Sub-rule (2) of Order XLIII prescribes that the procedure prescribed under Rules of Order XLI shall apply so far as may be to appeals from orders. And Rule 33 of Order XLI prescribes that the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only or the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. As noted above, the original temporary injunction order passed by the Trial Court was set aside. Thereafter, the appellate Court decided the matter relating to temporary injunction order and passed a temporary injunction in favour of the plaintiffs. Considering the aforesaid provisions under Section 107 and also Order XLI read with Order XLIII as discussed above, I have no hesitation to came to the conclusion that Appellate Court has the jurisdiction to pass a temporary injunction order.

9. Mr. Das further contended that when passing the impugned injunction order, the Appellate Court and also the Trial Court committed illegality and material irregularities while exercising jurisdiction. The learned counsel also submitted that the Appellate Court mis-appreciated the averments made in the pleadings of the parties and also the documents filed by the parties and, as such, an erroneous decision was passed in exercise of jurisdiction.

10. Mr. Narzary, the learned counsel for the respondents relying upon a number of decisions on the point of the extent of the power of the Revisional Court while dealing with the temporary injunction orders, passed by the Subordinate Court, submitted that the impugned order was passed after considering well established principles at the time of grant of temporary injunction orders. Some of the cases cited by the learned counsel are State of Tripura and Ors. v. Dr. Nilratan Majumdar, 1997 (I) GLT 641; Sher Singh v. Joint Director of Consolidation and Ors; AIR 1978 SC 1341; Dalpat Kr. and Anr. v. Prahlad Singh and Ors., AIR 1993 SC 276. And the learned counsel submitted that the findings and orders of the Trial Court as well as of the Appellate Court should not be disturbed by this Court in exercise of the revisional jurisdiction.

11. In the present case at hand, both parties asserted possession over the suit land, and as such, a contentious issue arose regarding possession. In such a case, the Court has to consider the pleadings, documents and all other materials available on record meticuluously before passing an injunction order in favour of one of the parties. In this regard the learned counsel have taken me through the judgments passed by the Appellate Court and also the Trial Court. It is found that the Courts below more particularly First Appellate Court considered not only the pleadings and the documents including revenue papers and also the statement of the witness examined before the Court and from the materials, came to the conclusion that plaintiffs possession over the suit land should be protected. Accordingly, the temporary injunction order was passed. Conclusions reached by the Courts below for the purpose of grant of temporary injunction, if it is not otherwise found to be against the well established principle of law or perverse, should not be interfered with by the High Court.

12. For the aforesaid reasons and conclusion, I do not find any substance in the Revision Petition. Accordingly the Revision Petition stands rejected. Interim order, if any, passed by this Court shall stand vacated. No costs.


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