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Kanna Belchada Vs. Ramappa Poojary - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Judge
Reported inAIR1976Kant67; ILR1976KAR139; 1975(2)KarLJ462
ActsCode of Civil Procedure (CPC), 1908 - Sections 115; Karnataka Lands Reforms (Second Amendment and Miscellaneous Provisions) Act, 1974 - Sections 4
AppellantKanna Belchada
RespondentRamappa Poojary
Appellant AdvocateM. Gopalakrishna Shetty, Adv.
Respondent AdvocateU.L. Narayana Rao and ;Tukaram S. Pai, Advs.
Excerpt:
.....the appellate court was quite justified in passing the impugned judgment and decree dismissing the suit. - the court below has failed to observe these requirements. ordinarily, i do not exercise my revisional jurisdiction in favour of a party who could as well move the lower court for vacating the ad interim order......and interfering with petitioners possession of plaint a schedule properties and for an order of ad interim injunction pending disposal of this application. heard mr. e. v. b. for plaintiff. perused the affidavit annexed with i. a. no. ii and the sketch produced along with the plaint and other documents. issue ad interim injunction as prayed in i. a. no.ii which shall be in force till 6-10-1975, simultaneously with notice on i. a. no. ii to defendants.issue suit summons with emergent notice on i. a. no. ii to defendants to appear on 19-8-1975.'challenging the validity of the above order, defendant-1 has preferred the revision petition.3. the sole contention urged for the petitioner is that the injunction order was without jurisdiction as it was contrary to section 4 of the karnataka act.....
Judgment:
ORDER

1. This petition under Section 115, is by defendant-1 challenging the interim injunction granted against him in O. S. No. 194 of 1975. Respondent-I filed the said suit in the Court of the Munsiff at Buntwal. South Kanara District, for permanent injunction restraining the defendants from interfering with his alleged possession and enjoinment of the plaint A schedule properties. Re plaint A schedule properties consist of (1) S. Not 102/lA, Wet, measuring 48 cents and (2) S. No. I02/lA, portion, Wet, measuring 58 cents.

2. The plaint was presented on 7-8 1975. On the same day, the plaintiff moved the trial Court for a temporary injunction. The learned Munsiff granted tie prayer in the following terms:

' I. A. No. II : - To issue temporary injunction restraining the defendants, their men, servants, successors etc. from entering into and interfering with petitioners possession of plaint A schedule properties and for an order of ad interim injunction pending disposal of this application. Heard Mr. E. V. B. for plaintiff. Perused the affidavit annexed with I. A. No. II and the sketch produced along with the plaint and other documents. Issue ad interim injunction as prayed in I. A. No.II which shall be in force till 6-10-1975, simultaneously with notice on I. A. No. II to defendants.

Issue suit summons with emergent notice on I. A. No. II to defendants to appear on 19-8-1975.'

Challenging the validity of the above order, defendant-1 has preferred the revision petition.

3. The sole contention urged for the petitioner is that the injunction order was without jurisdiction as it was contrary to Section 4 of the Karnataka Act 31 of 1974. Counsel for respondent-1, however, submits that the revision petition is not maintainable. Before I consider the contention urged for the petitioner, it is necessary to dispose of the preliminary objection.

Section 115 confers revisional jurisdiction on this Court. 'This Court may call for the record of any case, which has been decided by any Court subordinate and in which no appeal lies thereto, and if such subordinate Court appears (a) to have exercised a jurisdiction not vested in it by law and (b)........'

(Rest omitted),

It is urged that the order impugned is appealable under Order 43 Rule I (r) of the Code of Civil Procedure and therefore no revision lies to this Court.

4. Suffice it to state that that contention is not tenable. In S. S. Khanna v. F.J. Dillon : [1964]4SCR409 while dealing the scope of Section 115 of the Code of Civil Procedure, the Supreme Court observed:

'If an appeal lies against the adjudication directly to the High Court, or to another Court from the decision of which an appeal lies to the High Court, it has no power to exercise its revisional jurisdiction, but the decision itself is not appealable to the High Court directly or indirectly, exercise of the revisional jurisdiction by the High Court would not be deemed excluded.'

What follows from the above observation is, if an appeal lies against the order impugned herein directly to the High Court, or to another Court from the decision of which an appeal lies to the High Court, I have no power to exercise my revisional jurisdiction. But, where the order itself is not appealable to the High Court, directly or indirectly, I am not precluded from exercising my revisional jurisdiction. It is not in dispute that the ad interim injunction granted by the Munsiff is not appealable to this Court. Assuming that it is appealable to the Court of the Civil Judge, the order of the appellate Judge is not appealable to the Court. Therefore, there is no bar for entertaining the revision petition.

In support of the contention counsel for respondent-1 next relied upon le following two decisions of this Court in Katari Thippanna v. S. Hastimal (1964) 2 Mys LJ 414 and Midche Linge Gowda v. Channamma, (1973) 2 Mys LJ 134 = (AIR 1974 Kant 63). I have perused these decisions. The facts therein are far removed from those of the present case. Therefore, the principles stated therein are of no assistance to respondent-1.

The preliminary objection is therefore rejected.

5. I will turn now to the contention urged for the petitioner. Section 4 of Act 31 of 1974 provides:

'4. No temporary injunction without notice. - Notwithstanding anything in any law, no civil Court shall grant temporary injunction in respect of an agricultural land except after service of notice of the application for the same on the defendant.'

The above provision is not directory. It is a mandate issued to the Civil Courts not to issue ad interim injunction in respect of agricultural lands. The Courts before issuing ex parte injunction, must therefore exercise a little more caution to scrutinise the subject matter of litigation and if it involves agricultural land it must first issue notice to the defendant and consider his objections before making any order. The Court below has failed to observe these requirements. Ordinarily, I do not exercise my revisional jurisdiction in favour of a party who could as well move the lower Court for vacating the ad interim order. But in this case. I must make an exception. The order is ex facie without jurisdiction if not conscious violation of the mandatory provision.

6. In the result, this revision petition is allowed and the impugned order is set aside. In the circumstances I make no order as to costs.

7. Revision petition allowed.


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