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Roshan Lal Vs. Ratto - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 55 of 1975
Judge
Reported inAIR1977HP10
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rule 2
AppellantRoshan Lal
RespondentRatto
Appellant Advocate R.N. Malhotra, Adv.
Respondent Advocate P.N. Nag, Adv.
DispositionPetition dismissed
Cases ReferredSoshi Bhushan Ghose v. Gonesh Chunder Ghose.
Excerpt:
- .....trial court granted a temporary injunction. ratto appealed, and the appeal has been allowed by the learned district judge, kangra, who by his order dated 11-7-1975 has vacated the temporary injunction.2. the learned district judge has observed that inasmuch as ratto had from the very beginning been a tenant of the entire parcel of land purchased by roshan lal and had subsequents become owner of only a one third share therein, he continued as tenant in respect of the remaining portion. he has held that ratto could not be deprived of his tenancy rights to the extent of the remaining share, and was, therefore, entitled to possession of that share. in the circumstances, he found that roshan lal had no prima facie case justifying the grant of a temporary injunction. as to the balance of.....
Judgment:
ORDER

1. This is a plaintiffs revision petition against an appellate order of the learned District Judge, Kangra vacating an interim injunction granted by the trial court.

1A. The plaintiff. Roshan Lal, purchased a parcel of land of which the defendant, Ratto, was tenant. Ratto filed a suit for possession by way of pre-emption and was held entitled to pre-empt a one third share of the land. Accordingly, he became owner of the ,ne third share. Roshan Lal instituted partition proceedings, and the Assistant Collector made an order directing partition. Physical possession of a two third share was delivered to Roshan Lal. Ratto applied to the Assistant Collector that physical possession had been wrongly delivered to Roshan Lal inasmuch as he, Ratto, continued as tenant in that share of the land. The Assistant Collector accepted the plea, and ordered physical possession restored to Ratto. An appeal by Roshan Lal was rejected by the Collector. On April 25, 1973 Roshan Lal filed the present suit for a declaration that he was the owner in possession of the land and for a permanent injunction restraining Ratto from interfering with his possession. Roshan Lal also applied under Rules 1 and 2 of Order 39 of the Code of Civil Procedure for a temporay injunction. The trial court granted a temporary injunction. Ratto appealed, and the appeal has been allowed by the learned District Judge, Kangra, who by his order dated 11-7-1975 has vacated the temporary injunction.

2. The learned District Judge has observed that inasmuch as Ratto had from the very beginning been a tenant of the entire parcel of land purchased by Roshan Lal and had subsequents become owner of only a one third share therein, he continued as tenant in respect of the remaining portion. He has held that Ratto could not be deprived of his tenancy rights to the extent of the remaining share, and was, therefore, entitled to possession of that share. In the circumstances, he found that Roshan Lal had no prima facie case justifying the grant of a temporary injunction. As to the balance of convenience between the parties, the learned District Judge has pointed out that as Ratto was in occupation of the two third share of the land as a tenant, and restoration of possession had been ordered in his favour by the Assistant Collector, it would not be proper to protect the possession of Roshan Lal by granting a temporary injunction. The learned District Judge was also not satisfied that irreparable injury would accrue to Roshan Lal if Ratto was permitted possession of land.

3. In this revision petition by Roshan Lal, learned counsel for the petitioner points out that the learned District Judge has expressed himself on the merits of the case as if he was finally disposing of the suit itself, and has not confined himself to examining whether there was a prima facie case merely. He contends that, therefore, the impugned order is invalid. In regard to the powers of the court when considering-an application for a temporary injunction, reference has been made to Bishambar Nath Jaithy v. Municipal Committee, AIR 1926 Lah 589 and Gopal Krishan Kapoor v Ramesh Chander Nijhawan, 1973 Delhi LT 390. It seems to me that when the court is called upon to examine whether the plaintiff has a prima facie case in a suit for the purpose of determining whether a temporary injunction should be granted, the court must perforce examine the merits of the case and it will be compelled to consider whether there is a likelihood of the suit being decreed. The depth of investigation which the court must necessarily pursue for that purpose will vary with each case. Where, as in the two cases cited above, the determination must be made with reference to factual material, the scope of examination must be confined to the evidence on ths record, including affidavit evidence, available at that stage. When the suit finally reaches the point of disposal by the trial court, all the evidence will have meanwhile been let in and it is on the basis of that evidence, that the court will determine whether, even though a prima fade case may have been made out at the time of granting the temporary injunction, the plaintiff has succeeded in showing that the suit should be decreed in his favour. When, however, the decision of the suit turns principally on a question of law, very often the decision as to whether a prima facie case exists will turn on considerations identical with or substantially similar to those affecting the ultimate determination of the suit. Nonetheless, even there although an opinion may have been expressed on an application for temporary injunction that a prima facie case has been made out or has not been made out, it is open to the court when subsequently disposing of the suit itself to come to a conclusion, at variance with the earlier finding, whether the suit should be dismissed or decreed.

4. In the present case, the learned District Judge, while holding that not prima facie case has been mads out bythe plaintiff, has had to take into account primarily principles of law and apply them to facts which admit of little dispute. At the same time, he has specifically observed that the observations made by him in the order should not be taken to determine the merits of the case and must be deemed confined to the disposal of the appeal before him. In the circumstances, I am unable to see any force in the contention urged on behalf of the petitioner.

5. Learned counsel for the petitioner then contends that the appeal before the learned District Judge was not maintainable. He urges that Rules 1 and 2 of Order 39 did not apply and the temporary injunction granted by the trial court must be referred to its inherent jurisdiction. It seems to me that the case falls within the scope of rule 2 oi Order 39. Rule 2 speaks of a suit for restraining the defendant from committing a breach of contract or other injury of any kind. The expression 'other injury of any kind is very wide. It comprehends any kind of legal injury, and not necessarily an injury akin to a breach of contract. An obstruction to the exercise of rights of property is an injury which falls within the scope of rule 2. Soshi Bhushan Ghose v. Gonesh Chunder Ghose. (1502) ILR 29 Cal 500. In my judgment, the temporary injunction granted by the trial court in favour of the plaintiff must be ascribed to its powers under rule 2 of Order 39. For that reason, an appeal lay before the learned District Judge.

6. Upon the aforesaid considerations. I am unable to hold that the impugned order of the learned District Judge is vitiated by any error warranting interference by this Court in the exercise of its revisional jurisdiction.

7. The revision petitipn is dismissed with costs.


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