Decided on April 26,2013

SABIR Appellant
ABDUL WASHID Respondents


T.NANDAKUMAR SINGH, J. - (1.) By this petition under Article 227 of the Constitution of India, the petitioner is assailing the judgment and order of the District Judge, Shillong dated 21.12.2012 passed in FAO No.4(H)2011 for upholding the judgment and order dated 21.04.2011 passed by the Assistant District Judge, Shillong in Misc. Case No.39(H)2009 (reference Partition Suit No.12(H)2006) for temporary injunction restraining the petitioner from appropriating with the respondent/plaintiff's one fifth share of the monthly rent collected from the 26 tenants in the suit property and further directed the petitioner to deposit the same in the Court till the partition suit, where there is no main prayer for injunction, is finally decided. The core issues posed for consideration in the present revision are: - (i) Whether the prayer for temporary injunction (mandatory temporary injunction) can be granted in a suit for partition simpliciter, where there is no main prayer for injunction (one of the main relief)? and (ii) Whether the Court can exercise the discretionary powers to grant temporary (mandatory) injunction without considering the three Golden Tests, viz: - (a) Whether the plaintiff has a prima facie case; (b) Whether the balance of conve -nience is in favour of the plaintiff; (c) Whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed? And (iii) Whether temporary injunction could be granted at the discretion of the Court in a case which falls under Section 41 of the Specific Act, 1963?
(2.) Heard Mr. S. Sen, learned counsel appearing for the petitioner and Mr. S.S. Das, learned counsel appearing for the respondent.
(3.) Since this judgment is not required to give finding as to the claims made by the parties in their respective pleadings as that would be decided in the suit itself, this Court would not observe anything in this revision that may cause prejudice in disposal of the suit. As such, only the facts sufficient for deciding this revision are briefly noted.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.