GANGADHAR RAUT Vs. BINDO BIHARI NAYAK

JUDGEMENT

(1.) -The petitioner has filed these two revisions against the common order passed by the appellate court in Misc. Appeal No. 3/79 of 1997-93 and Misc. Appeal No. 4/80 ot 1997-93 reversing the order passed by the trial court.

(2.) The plaintiff-petitioner has filed a suit for specific performance of contract. During the pendency of the suit an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as the 'Code') was filed wherein an ex parte ad interim order of injunction was granted. The opposite party after appearance filed an application under Order 39, Rule 4, CPC and the trial court after considering both the matters rejected the petition under Order 39. Rule 4. C.P.C. and allowed the application under Order 39, Rules 1 and 2, CPC, and grantee, an order of injunction restraining the defendant from interfering with the possession of the plaintiff. Against the said order of the trial court the defendant filed two appeals, one against the order in Misc. ase No. 174 of 1991 and the other against the order in Misc Case No. 188 of 1991/ Both the appeals- were disposed of by a common judgment wherein the appellate court allowed the appeals and not only vacated the order of injunction but also observed that the suit filed by the plaintiff was not maintainable in the eye ot law. The plaintiff has filed two revisions since two Misc. Cases were disposed of and two appeals had been filed. Both the Civil Revisions have been heard together and are being disposed of by a common order.

(3.) In matters relating to injunction, the court is not required to give finding regarding the maintainability of the suit itself. The observation of the lower appellate court that the present suit was not maintainable by applying the principles of res judicata and Order 2. Rule 2 CPC is wholly uncalled for and there was no necessity at this stage for giving such a finding. In such matters a prima facie case is to be found out and emphasis is always on the question of possession and that too onk prima facie opinion on the matter is required to be formed. Of course the courts are also required to consider about irreparable loss and balance of convenience. It is apparent that the appellate court has misdirected itself in the matter. As such, I consider it a fit case where the matter should be remanded to the lower appellate court for fresh disposal. Since the Addl. District Judge had already given definite opinion, it would be better that the appeals after remand should be disposed of by the District Judge himself. It is made clear that the District Judge should dispose of the appeals in accordance with law on merit without being influenced by any of the observations made in this order and the remand by this court should not be taken to be indicative of expression of any definite opinion on any of the points in controversy.