Case Note & Summary
The appellants, Firm Ishardas Devi Chand and its partners, claimed to be tenants of the respondent, R. B. Parkash Chand, in respect of premises in Amritsar. They filed a suit for permanent injunction to restrain the respondent from taking possession in execution of an eviction order obtained by the respondent against another firm, Tara Chand Ishar Das, and one Ishar Das. Along with the suit, the appellants filed an application under Order 39 Rules 1 and 2 and Section 151 of the Code of Civil Procedure, 1908 for a temporary injunction pending disposal of the suit. The trial court, the Sub-Judge, Amritsar, after examining the facts, found that the appellants were sub-tenants and not tenants, and that the liability to be evicted in execution of a valid order could not be considered an 'injury' within the meaning of Order 39 Rule 2. Consequently, the application for temporary injunction was dismissed on July 20, 1967. The appellants appealed to the District Judge, but the appeal was dismissed on a preliminary objection raised by the respondent that the order was passed under Section 151 CPC and was not appealable under Order 43 Rule 1. The High Court dismissed the revision in limine. The appellants then obtained special leave to appeal to the Supreme Court. The core legal issue was whether the order of the trial court was appealable under Order 43 Rule 1, CPC. The Supreme Court held that the order was clearly appealable. The Court reasoned that when the trial court decided that the application did not satisfy the requirements of Order 39 Rule 2, it was passing an order under that very rule. The argument that the order was under Section 151 was rejected because the court did not exercise inherent powers; it decided a matter under Order 39 Rule 2. Therefore, an appeal lay under Order 43 Rule 1. However, on the merits, the Court declined to interfere under Article 136 of the Constitution. It noted that the appellants had not made out a prima facie case for a temporary injunction. The application under Section 4 of the East Punjab Urban Rent Restriction Act, 1949, had been dismissed, and the order had not been challenged. There was no conclusive evidence of a landlord-tenant relationship. Additionally, the trial court had found that the balance of convenience favored the respondent and that the appellants had been guilty of laches. The Supreme Court observed that the discretion exercised by the trial court was neither capricious nor arbitrary, and thus no interference was warranted. The appeal was dismissed without any order as to costs.
Headnote
A) Civil Procedure - Temporary Injunction - Appealability - Code of Civil Procedure, 1908, Order 39 Rule 2 and Order 43 Rule 1 - The trial court dismissed an application for temporary injunction on the ground that the act complained of was not an 'injury' under Order 39 Rule 2. The Supreme Court held that this order was an order under Order 39 Rule 2 itself and therefore appealable under Order 43 Rule 1. The District Judge's preliminary objection that the order was under Section 151 was rejected because the Sub-Judge did not exercise inherent powers but decided the application under Order 39 Rule 2. Held that the order was appealable (Paras Not mentioned). B) Civil Procedure - Temporary Injunction - Discretion and Prima Facie Case - Code of Civil Procedure, 1908, Order 39 Rule 2; Article 136, Constitution of India - On merits, the Court declined to interfere under Article 136 as the appellants had not made out a prima facie case for temporary injunction. The application under the rent act had been dismissed, no landlord-tenant relationship was established, and the balance of convenience favored the respondent. The trial court's discretion was not capricious. Held that appeal dismissed (Paras Not mentioned).
Issue of Consideration
Whether an order dismissing an application for temporary injunction on the ground that it did not satisfy the requirements of Order 39 Rule 2 is an order under that rule and thus appealable under Order 43 Rule 1 of the Code of Civil Procedure, 1908; and whether on merits, the appellants have made out a case for temporary injunction.
Final Decision
The appeal was dismissed. The Supreme Court held that the trial court's order was appealable under Order 43 Rule 1 CPC, but on merits, declined to interfere under Article 136 as the appellants had not made out a prima facie case and the trial court's discretion was not exercised capriciously. No costs were awarded.
Law Points
- Legal points not extracted
- Order dismissing application under Order 39 Rule 2 is appealable under Order 43 Rule 1
- Decision that application does not fall within Order 39 Rule 2 is an order under that rule
- Inherent powers under Section 151 CPC not exercised when court holds Order 39 Rule 2 inapplicable
- Temporary injunction requires prima facie case
- Supreme Court may decline interference under Article 136 if no case made out
