Case Note & Summary
The revision application was filed by the applicants (original plaintiffs) challenging the order dated 23.11.2017 passed by the trial court dismissing their application for temporary injunction under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908. The applicants had filed a suit for permanent injunction against the respondents, claiming rights over certain property. The trial court dismissed the injunction application without proper application of mind and without considering the prima facie case, balance of convenience, and irreparable loss. The High Court, after hearing both sides, found that the impugned order was not sustainable and set it aside. The matter was remanded to the trial court for fresh consideration of the injunction application on its own merits, in accordance with law. The High Court directed the trial court to decide the application afresh within a period of four weeks from the date of receipt of the order.
Headnote
A) Civil Procedure - Temporary Injunction - Order 39 Rule 1 and 2 CPC - Prima Facie Case - The trial court dismissed the application for temporary injunction without proper application of mind and without considering the prima facie case, balance of convenience, and irreparable loss. The High Court held that the impugned order was not sustainable and remanded the matter for fresh consideration. (Paras 1-5)
B) Civil Procedure - Revision - Section 115 CPC - Interference with Discretionary Order - The High Court in revision can interfere if the subordinate court has exercised its jurisdiction illegally or with material irregularity. The impugned order was found to be passed without proper application of mind, warranting interference. (Paras 1-5)
Issue of Consideration
Whether the trial court was justified in dismissing the application for temporary injunction under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908, without proper application of mind and without considering the prima facie case, balance of convenience, and irreparable loss.
Final Decision
The revision application is allowed. The impugned order dated 23.11.2017 is set aside. The matter is remanded to the trial court for fresh consideration of the application for temporary injunction on its own merits, in accordance with law. The trial court is directed to decide the application afresh within a period of four weeks from the date of receipt of the order.
Law Points
- Order 39 Rule 1 and 2 CPC
- Prima Facie Case
- Balance of Convenience
- Irreparable Loss
- Temporary Injunction
- Revision Application
Case Details
2018 LawText (BOM) (01) 25
Civil Revision Application No.244 of 2017
Mr.A.P.Bhandari for applicants, Mr.S.G.Jadhavar for respondent Nos.1 to 4
Sau.Dipali Himmat Meherwal and Himmat Kalyanlal Meherwal
Shaikh Nazir Mohammad Nasir, Shaikh Anwar Mohammad Nasir, Gulam Hussain Alabaksh, Sau.Ameena Haji Mirza, Shaikh Iliyas Mubarak, Gaiakwad David Shamrao
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Nature of Litigation
Civil revision application challenging order dismissing application for temporary injunction under Order 39 Rule 1 and 2 CPC in a suit for permanent injunction.
Remedy Sought
The applicants sought to set aside the trial court's order dated 23.11.2017 dismissing their application for temporary injunction and to grant injunction in their favor.
Filing Reason
The trial court dismissed the application for temporary injunction without proper application of mind and without considering the prima facie case, balance of convenience, and irreparable loss.
Previous Decisions
The trial court passed order dated 23.11.2017 dismissing the application for temporary injunction.
Issues
Whether the trial court was justified in dismissing the application for temporary injunction under Order 39 Rule 1 and 2 CPC without proper application of mind and without considering the prima facie case, balance of convenience, and irreparable loss.
Submissions/Arguments
Mr.A.P.Bhandari for applicants submitted that the trial court erred in dismissing the injunction application without proper application of mind.
Mr.S.G.Jadhavar for respondent Nos.1 to 4 opposed the revision application.
Ratio Decidendi
The trial court dismissed the application for temporary injunction without proper application of mind and without considering the prima facie case, balance of convenience, and irreparable loss. The impugned order was not sustainable and was set aside. The matter was remanded for fresh consideration.
Judgment Excerpts
The revision application challenges order dated 23.11.2017 passed by the trial court dismissing the application for temporary injunction under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908.
The impugned order is not sustainable and is set aside.
The matter is remanded to the trial court for fresh consideration of the application for temporary injunction on its own merits, in accordance with law.
Procedural History
The applicants filed a suit for permanent injunction in the trial court. They also filed an application for temporary injunction under Order 39 Rule 1 and 2 CPC. The trial court dismissed the injunction application by order dated 23.11.2017. The applicants challenged this order by filing the present civil revision application under Section 115 CPC before the High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Order 39 Rule 1, Order 39 Rule 2, Section 115
