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)
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.
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
