Case Note & Summary
The appeal arises from a suit filed by Respondents 1 to 4 (plaintiffs) against the appellant (defendant No.1) and the Municipal Corporation (defendant No.2) seeking permanent injunction to restrain the appellant from covering a passage and opening a gate. The plaintiffs also sought leave under Order II Rule 2 of the Code of Civil Procedure, 1908 (CPC) to file the suit without including certain reliefs. The trial court, by judgment and order dated December 21, 2004, granted an interim injunction in favor of the plaintiffs without first adjudicating the leave application. The appellant challenged this order. The High Court noted that the trial court had not considered the leave application under Order II Rule 2 CPC, which was a preliminary issue affecting the maintainability of the suit. The court held that the trial court ought to have decided the leave application before granting any interim relief. Consequently, the High Court set aside the impugned order and remanded the matter to the trial court for fresh consideration of the notice of motion after deciding the leave application. The appeal was allowed, and the parties were directed to appear before the trial court on August 21, 2006.
Headnote
A) Civil Procedure - Leave to sue under Order II Rule 2 CPC - Necessity of leave when part of cause of action omitted - The plaintiffs sought leave under Order II Rule 2 CPC to file the suit without including certain reliefs, but the trial court granted interim injunction without deciding the leave application - Held that the court must first consider the leave application before granting any interim relief, as the maintainability of the suit depends on it (Paras 4-6).
Issue of Consideration
Whether the trial court was justified in granting interim injunction restraining the appellant from covering the suit passage and opening the suit gate without considering the requirement of leave under Order II Rule 2 CPC.
Final Decision
Appeal allowed. Impugned judgment and order dated December 21, 2004 set aside. Notice of Motion No.4502 of 2004 restored to file of trial court for fresh disposal after deciding the leave application under Order II Rule 2 CPC. Parties to appear before trial court on August 21, 2006. No order as to costs.
Law Points
- Order II Rule 2 CPC
- Leave to sue
- Permanent injunction
- Property rights
- Passage and gate dispute
