- (1.) Order-Special Leave granted.
(2.) Heard learned counsel for the parties. The appellant filed a suit for perpetual injunction for restraining the defendant-respondents from interfering with his possession and from carrying on any constructions in the house in dispute. The appellant filed an application along with the suit for temporary injunction under Order 39, Rule 1 and 2 of the Code of Civil Procedure for restraining the defendant respondents from making any constructions during the pendency of the suit. The Munsif, namely, the Trial Court granted ex-parte injunction but on contest by the defendant-respondents he vacated the interim order and rejected the interim injunction application. The appellant preferred appeal before the District Judge under Order 43, Rule 1 of the Code of Civil Procedure. The learned District Judge by his order dated 3-2-1988, set aside the order of the Trial Court and passed an interim injunction restraining the defendant-respondents from making any constructions in the building in question, during the pendency of the suit. The defendant-respondents thereupon made a writ petition under Article 226 of the Constitution before the High Court for the issue of a writ of certiorari quashing the order of the District Judge dated 3-2-1988. The High Court entertained the writ petition and issued interim order suspending the order of the District Judge. Finally a learned Single Judge of the High Court, by his order dated August 5, 1988, allowed the writ petition and quashed the order of the District Judge dated 3-2-1988 and permitted the defendant-respondents to make construction at their own costs and risk and issued a writ of mandamus restraining the plaintiff-appellant from interfering with the respondents in making constructions which would be subject to the result of the suit. The plaintiff-appellant has preferred this appeal against the aforesaid order of the High Court. After hearing learned counsel for the parties we are surprised as to how the High Court entertained the writ petition under Article 226 of the Constitution for issuing a writ of certiorari and mandamus. When a suit is filed before a Civil Court having jurisdiction to entertain the same it may issue interim injunction and the party aggrieved may pursue its remedy before the Appellate Court and if it is further aggrieved it may invoke the revisional jurisdiction of the High Court under the Code of Civil Procedure. Ordinarily an interlocutory order passed in a Civil suit is not amenable to extraordinary jurisdiction of the High Court under Article 226 of the Constitution. More so when the aggrieved party has not exhausted the remedy available to it under the Code of Civil Procedure. The High Court in the instant case failed to realise that the defendant-respondents had not approached the High Court under Section 115 of the Code of Civil Procedure. The question whether an interim injunction should be granted or not is discretionary in nature, although the exercise of discretion is regulated by the principles set out in Order 39, Rule 1 and 2 of the Code of Civil Procedure. If the order of injunction is passed by a competent Court having jurisdiction in the matter, it is not permissible for the High Court under Article 226 of the Constitution to quash the same by issuing a writ of certiorari. In the instant case the learned Single Judge of the High Court further failed to realise that a writ of mandamus could not be issued in this case. A writ of mandamus cannot be issued to a private individual unless he is under a statutory duty to perform a public duty. The dispute involved in the instant case was entirely between two private parties, which could not be a subject matter of writ of mandamus under Article 226 of the Constitution. The learned Single Judge ignored this basic principle of writ jurisdiction conferred on the High Court under Article 226 of the Constitution. There was no occasion or justification for issue of a writ of certiorari or mandamus. The High Court committed serious error of jurisdiction in interfering with the order of the District Judge.
(3.) We, accordingly, allow the appeal, set aside the order of the High Court dated August 5, 1988 and restore the order of the District Judge, dated 3-2-1988. The appellant is entitled to his costs.;