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Sito Mahton and ors. Vs. F.F. Christien - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in17Ind.Cas.361
AppellantSito Mahton and ors.
RespondentF.F. Christien
Excerpt:
injunction, temporary - order to furnish security and submit accounts--appeal--civil procedure code (act v of 1908), sections 94(e) and 115, c. xxxix, rule 1, order xliii, rule 1, clouse (r)--interlocutory order for ends of justice--revision. - .....the plaintiff to show cause why the order in question should not be set aside. the court granted a rule and directed further proceedings to be stayed ad interim. before this order was communicated to the court below, on the 7th february 1911, the subordinate judge directed the issue of an injunction inasmuch as the security and the accounts had not been furnished within the date specified. no appeal, however, has been preferred against the order of the 7th september.3. on behalf of the respondent, a preliminary objection has been taken to the competency of this appeal on the ground that it is not an order under rule 1 of order xxxix of the code and is, consequently, not appealable under clause (r) of rule 1 of order xliii. in our opinion, this contention is well founded and must.....
Judgment:

1. The respondent instituted a suit for ejectment against the appellants on the 10th December 1910. On the 11th February 1911, he prayed for the issue of a temporary injunction restraining the defendants from working the mica mines on the disputed property and raising mica therefrom. The application for injunction was opposed by the defendants. The Court thereupon directed that the matter be taken up on the 12th August. On that date, an order was made in these terms,--'The plaintiff has brought a suit for ejectment. The defendant alleges himself to be a lessee of a mica mine. The plaintiff is afraid that the defendant will appropriate a major quantity of the mica in the mine and thus prejudice the plaintiff seriously. Notice has been served on the other side to show cause why he should not be prevented from working in the mica mines. Ordered that the defendant do furnish security to the extent of Rs. 5,000 and submit accounts of the monies appropriated every week from the date of the application for injunction. Date is fixed for 6th September.'

2. The present appeal is directed against this order. The appellants also moved this Court on the 25th August 1911 and prayed for a Rule upon the plaintiff to show cause why the order in question should not be set aside. The Court granted a Rule and directed further proceedings to be stayed ad interim. Before this order was communicated to the Court below, on the 7th February 1911, the Subordinate Judge directed the issue of an injunction inasmuch as the security and the accounts had not been furnished within the date specified. No appeal, however, has been preferred against the order of the 7th September.

3. On behalf of the respondent, a preliminary objection has been taken to the competency of this appeal on the ground that it is not an order under Rule 1 of Order XXXIX of the Code and is, consequently, not appealable under Clause (r) of Rule 1 of Order XLIII. In our opinion, this contention is well founded and must prevail.

4. Rule 1 of Order XXXIX provides that where in any suit it is proved by affidavit or otherwise that any property in dispute in the suit is in danger of being wasted, the Court may, by order, grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing the wasting of the property, as the Court thinks fit, until the disposal of the suit or until further orders. It is not disputed that the order in question does not grant a temporary injunction; nor can it be contended that the order stays and prevents the wasting of the property. Inspite of the order, the defendants were entitled to work the mine. They were merely called upon to furnish security and submit periodical accounts. The order in question is clearly one not contemplated by Rule 1 of Order XXXIX. The appeal is, therefore, incompetent and must be dismissed with costs. We assess the hearing fee at two gold mohurs.

5. We have been invited, however, to set aside the order in the exercise of our revisional jurisdiction. But there is obviously no ground for such interference. The order was made under Clause (e) of Section 94 of the Code, which authorises the Court, in order to prevent the ends of justice from being defeated, to make such interlocutory orders as may appear to the Court to be just and convenient. This Rule must, consequently, be discharged but there will be no separate order for costs.

6. As the trial of the case has been delayed for nearly two years by reason of the application for injunction and the order therein, the records will be returned without delay to the Court below so that the hearing may be expedited.


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