Case Note & Summary
The case involves a civil revision application filed by the original defendant against an order granting mandatory injunction in favor of the plaintiff. The plaintiff and defendant, residents of the same village, jointly purchased a JCB machine in October 2013, each contributing Rs. 1,75,000. The machine was registered in the defendant's name. On 27 November 2014, they entered into an agreement to share profits and losses equally. The plaintiff operated the machine for about two years but was not paid wages. In May 2015, the plaintiff demanded wages and inspection of records, which the defendant refused. The plaintiff then learned that the defendant intended to dispose of the machine. The plaintiff filed a suit for mandatory injunction seeking possession of the machine for two years, production of account books, and appointment of a receiver. The trial court granted the injunction, directing the defendant to hand over the machine. The defendant challenged this order under Section 115 of the Code of Civil Procedure, 1908. The High Court held that a suit for mandatory injunction seeking possession of a jointly owned asset without a prayer for partition is not maintainable. The proper remedy is a suit for partition. The trial court's order granting injunction was without jurisdiction and suffered from material irregularity. The revision was allowed, and the trial court's order was set aside.
Headnote
A) Civil Procedure - Mandatory Injunction - Maintainability - Suit for mandatory injunction seeking possession of a jointly owned JCB machine without a prayer for partition is not maintainable - The plaintiff's remedy lies in a suit for partition, not injunction - Held that the trial court acted without jurisdiction in granting the injunction (Paras 6-8). B) Civil Procedure - Revision - Section 115 CPC - Jurisdictional Error - An order granting mandatory injunction for delivery of possession of property without a prayer for partition suffers from material irregularity and is revisable under Section 115 CPC - Held that the revisional court can interfere when the subordinate court has acted without jurisdiction (Paras 5, 9).
Issue of Consideration
Whether a suit for mandatory injunction seeking possession of a jointly owned asset is maintainable without a prayer for partition, and whether the trial court had jurisdiction to grant such injunction.
Final Decision
The Civil Revision Application is allowed. The order dated 30th September, 2016 passed by the trial court granting mandatory injunction is set aside. The suit is dismissed as not maintainable.
Law Points
- Suit for mandatory injunction not maintainable without seeking partition
- Order 39 Rules 1 and 2 CPC not applicable for delivery of possession
- Section 115 CPC revision lies against order without jurisdiction
