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Shivaraya Vs. Sharanappa and ors - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 232 of 1961
Judge
Reported inAIR1965Kant34; AIR1965Mys34; (1967)1MysLJ414
ActsCode of Civil Procedure (CPC), 1908 - Sections 151- Order 9, Rule 9 - Order 39, Rule 4
AppellantShivaraya
RespondentSharanappa and ors
Excerpt:
.....act, 1863 is still applicable to the jains of dakshina kannada. section 10; maintainability of application under power of the district judge to fill up the vacancy of the membership of jaina mathasthapana committee held, section 10 of the act would provide for filing application for filling up the vacancy which would occur among the members of the committee before the district judge as contemplated under the provisions of the act, since the same would remain in force in so far as the jain religious endowments are concerned. section 10 is the only provision on which the applicants would have to fall back upon to seek for filling of the vacancy that arises in the committee. that being so, the i additional district judge, was not justified in dismissing the petition filed under..........him that the order of temporary injunction was one, passed really in the exercise of the court's inherent jurisdiction and that the lower court has committed a grave error in taking the view that it had no jurisdiction to pass such an order in the exercise of its power under section 151 of the c.p.c.(3) it seems to me that the court has taken a somewhat narrow view, of its inherent powers. in view of the decision of the supreme court, in the case of manohar lal chopra v. rai bhadur rao raja seth hiralal reported in : air1962sc527 , it can no longer be open to doubt that even in the respect of matters not falling under the provisions of order 39, it would be within the competence of the court, when the interests of justice so require, to make an appropriate order in the exercise of its.....
Judgment:
ORDER

(1) In the course of a miscellaneous proceeding pertaining to an application under Order 9, Rule 9 of the Code of Civil Procedure, the Petitioner therein had filed an application which purported to be under the provisions of Order 39 and Section 151 of the C.P.C. On that application, he had obtained an ex parte Order of temporary injunction against the respondent. Thereafter, the respondent filed an application which purported to be under Order 39, Rule 4 of the C.P.C. The lower Court then set aside the Order of temporary injunction which it had passed. It is against this Order that the petitioner in the said proceeding under Order 9, Rule 9 of the C. P. C has now come up in revision.

(2) Sri Manohar Rao Jahagirdar the learned Advocate for the respondent raised a preliminary objection to the effect that a revision was not maintainable and that the proper remedy for the petitioner was to go up in appeal, as provided in O. 43, Rule 1(r) of the C.P.C. As against this objection it has been argued by Sri V.S. Kulkarni the learned Advocate for the petitioner that in his application for temporary injunction, he had invoked the power of the Court not merely under the provisions of Order 39, but also Section 151 of the C.P.C. It is contended by him that the Order of temporary injunction was one, passed really in the exercise of the Court's inherent jurisdiction and that the lower Court has committed a grave error in taking the view that it had no jurisdiction to pass such an Order in the exercise of its power under section 151 of the C.P.C.

(3) It seems to me that the Court has taken a somewhat narrow view, of its inherent powers. In view of the decision of the Supreme Court, in the case of Manohar Lal Chopra v. Rai Bhadur Rao Raja Seth Hiralal reported in : AIR1962SC527 , it can no longer be open to doubt that even in the respect of matters not falling under the provisions of Order 39, it would be within the competence of the Court, when the interests of justice so require, to make an appropriate order in the exercise of its inherent powers. The only ground on which the lower Court has vacated the Order of temporary injunction is that its power under S. 151 could not be invoked and that the matter did not fall within the scope of Order 39 of the C.P.C.

(3a) This is a grave error committed by the lower Court in regard to its jurisdiction. The Court had really jurisdiction; having regard to the circumstances of a particular case, it could either exercise or decline to exercise its inherent power, in accordance with its judicial discretion. But to say that the Court did not at all have the jurisdiction to make an Order in the exercise of its inherent powers, is an error which requires to be set right in revision. Though the Order was passed on an application made by the Respondent under Rule 4 of Order 39, the Order which has been passed by the lower Court is, in substance an Order pertaining to its jurisdiction under Section 151 of the C.P.C. In these circumstances, I am satisfied that the petitioner is justified in approaching the Court of revision. There is no substance in the contention that the petitioner ought to have approached the Court of appeal, because, in its real nature, the Order passed by the trial Court cannot be an order under Order 39 of the C.P.C. having regard to the fact that it is not an Order made in a suit.

This Revision Petition is allowed and the Order passed by the lower Court is set aside, with the direction that the lower Court will dispose of afresh, the question as to whether the Order of temporary injunction passed by it should or should not be vacated, after again hearing both the sides. No order as to costs in this revision petition.

(4) Revision allowed.


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