1. The appellants who were plaintiffs in O. S. No. 356 of 1971 on the file of the Munsiff, Kolar, are aggrieved by an order made by the Civil Judge, Kolar, in R. A. No. 150 of 1974, whereby their prayer for issuance of temporary injunction has been refused.
2. The appellants sued for a permanent injunction in respect of a conservancy adjoining their properties on the ground that the same was public conservancy road. In the course of the suit, they filed an application for temporary injunction against the defendant which was granted in the first instance ex parte, and later on an undertaking having been given by the defendant (1st respondent herein) that he would not interfere with the use of the road by the plaintiffs, the relief of temporary injunction was not pursued. After trial the suit was dismissed holding inter alia that it was a public conservancy road and that the plaintiffs not having established a legal right the same was not a case for decreeing the suit for injunction. The plaintiffs appealed to the Civil Judge in R. A. No. 150 of 1974. In the course of the appeal, they sought for the issue of a temporary injunction on the same lines as had been prayed for before the trial Court. The learned Civil Judge after referring to the findings of the learned Munsiff, refused to grant the injunction prayed for apparently relying on an enunciation reported in Item 165 in 1971 (1) Mys LJ (NRC) 72.
3. After hearing the learned counsel for the appellants, I am clearly of the view that this appeal deserves to succeed. The enunciation relied on by the lower appellate court is clearly inapplicable to the facts of the present case. In the instant case, it is clearly found by the trial court that the conservancy in question was a public one, which means that every member of the public has a right to the user thereof unobstructed by any one else, much less the defendant. The enunciation in Item 165 relates to a case of refusal to grant injunction where the trial court has found after trial that the person applying for such injunction had not been in possession of the property in dispute. In the face of a finding of that nature by a civil court, it is but proper for an appellate court to rely on it and refuse an injunction. This enunciation is subsequently dealt with by a decision of this court in Ratnavathi v. Munda Belchada, (AIR 1974 Karnataka 120) and explained in the following terms by His Lordship Govinda Bhat, C. J. The enunciation is with reference to, the very decisionrelied on by the learned Civil Judge, and reads thus:
'The learned Civil Judge has read the decision (1971 (1) Mys LJ (NRC) p. 72, Item 165) as laying down that under no circumstances an order of temporary injunction can be made by the appellate court when the trial court dismisses the plaintiff's suit. That is not the correct view of the law. Ordinarily, where the original court after trial records a finding that the plaintiff is not in possession and the suit is dismissed on that ground, it would not be a fit case for ordering temporary injunction by the appellate court during the pendency of the appeal. There may however be exceptional circumstances justifying the appellate court in making an order of temporary injunction. It is not possible to lay down all the circumstances under which an order of temporary injunction can be made. Each case has to be dealt with on its own merits............'
Viewed in the light of the enunciation and also the distinguishing features of the present case, I am clearly of the view that the order impugned herein cannot be sustained. It is therefore set aside.
4. As a result, this appeal succeeds and is accordingly allowed. Consequently, the interlocutory application for the relief of injunction filed before the learned Civil Judge is allowed and an injunction will issue in terms prayed for. No costs.
5. Appeal allowed.