Bombay High Court Dismisses Revision Application as Not Maintainable in Civil Suit for Injunction — Order Refusing Temporary Injunction Is Appealable Under Order 43 Rule 1(r) CPC. Revision Under Section 115 CPC Is Not Maintainable When an Alternative Remedy of Appeal Exists.

High Court: Bombay High Court Bench: AURANGABAD
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Case Note & Summary

The present Civil Revision Application was filed by the applicants, Babybai w/o Skharam Pardeshi and Madansingh s/o Dharamsingh Pardeshi, against the order dated 19th April 2012 passed by the 5th Joint Civil Judge, Junior Division, Beed, below Exhibit 40 in Regular Civil Suit No. 222 of 2010. The background facts, as disclosed in the application, relate to a dispute over encroachment on common property. The applicants sought to challenge the trial court's order refusing temporary injunction. However, the High Court, upon hearing the parties, observed that the order refusing temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC) is appealable under Order 43 Rule 1(r) CPC. Consequently, the revision application under Section 115 CPC was not maintainable. The court dismissed the revision application as not maintainable, but granted liberty to the applicants to file an appeal against the impugned order, if so advised. The court also directed that if such an appeal is filed within a specified period, the same shall be considered on its own merits without being barred by limitation.

Headnote

A) Civil Procedure Code - Maintainability of Revision - Section 115 CPC - Order 43 Rule 1(r) CPC - The court considered whether a revision application under Section 115 CPC is maintainable against an order refusing temporary injunction under Order 39 Rules 1 and 2 CPC. The court held that since an appeal lies under Order 43 Rule 1(r) CPC against such an order, the revision is not maintainable. The court dismissed the revision application as not maintainable, granting liberty to the applicants to file an appeal. (Paras 2-4)

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Issue of Consideration

Whether a civil revision application under Section 115 of the Code of Civil Procedure, 1908 is maintainable against an order refusing temporary injunction under Order 39 Rules 1 and 2 CPC, when an appeal lies under Order 43 Rule 1(r) CPC.

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Final Decision

The Civil Revision Application is dismissed as not maintainable. However, the applicants are granted liberty to file an appeal against the impugned order, if so advised. If such an appeal is filed within a specified period, it shall be considered on its own merits without being barred by limitation.

Law Points

  • Order 39 Rules 1 and 2 CPC
  • Order 43 Rule 1(r) CPC
  • Section 115 CPC
  • maintainability of revision against refusal of temporary injunction
  • alternative remedy of appeal
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Case Details

2013 LawText (BOM) (07) 25

Civil Revision Application No. 139 of 2013

2013-07-31

S.S. Shinde, J.

Mr. C.V. Dharurkar for applicants, Mr. S.D. Bade h/f Mr. S.S. Thombre for respondent sole

Babybai w/o Skharam Pardeshi and Madansingh s/o Dharamsingh Pardeshi

Ganesh s/o Asaram Sawant

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Nature of Litigation

Civil Revision Application against order refusing temporary injunction in a civil suit for injunction regarding encroachment on common property.

Remedy Sought

The applicants sought to challenge the order dated 19th April 2012 refusing temporary injunction under Order 39 Rules 1 and 2 CPC.

Filing Reason

The applicants were aggrieved by the trial court's order refusing temporary injunction.

Previous Decisions

The trial court (5th Joint Civil Judge, Junior Division, Beed) passed the order below Exhibit 40 in Regular Civil Suit No. 222 of 2010 on 19th April 2012, refusing temporary injunction.

Issues

Whether a civil revision application under Section 115 CPC is maintainable against an order refusing temporary injunction under Order 39 Rules 1 and 2 CPC, when an appeal lies under Order 43 Rule 1(r) CPC.

Submissions/Arguments

The applicants argued that the revision application is maintainable. The respondent contended that the revision is not maintainable as an appeal lies under Order 43 Rule 1(r) CPC.

Ratio Decidendi

An order refusing temporary injunction under Order 39 Rules 1 and 2 CPC is appealable under Order 43 Rule 1(r) CPC. Therefore, a revision under Section 115 CPC is not maintainable when an alternative remedy of appeal is available.

Judgment Excerpts

The order refusing temporary injunction under Order 39 Rules 1 and 2 CPC is appealable under Order 43 Rule 1(r) CPC. Therefore, this Civil Revision Application is not maintainable.

Procedural History

The trial court passed the order refusing temporary injunction on 19th April 2012. The applicants filed the present Civil Revision Application in the High Court on an unspecified date. The High Court heard the matter and dismissed the revision as not maintainable on 31st July 2013.

Acts & Sections

  • Code of Civil Procedure, 1908: Section 115, Order 39 Rules 1 and 2, Order 43 Rule 1(r)
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