- (1.) THE instant revision has been filed against the order dated 28. 3. 95 passed by the learned Civil Judge (Jr. Division) and Judicial Magistrate First Class, Pindwara, District Sirohi in Civil Misc. Case No. 6/93 (Amra & Ors. vs. Dharma Godhi & Ors.) by means of which the learned trial court while rejecting application under O. 39 r. 1 CPC had passed ad- interim injunction in exercise of its residuary power conferred u/s. 151 CPC.
(2.) I have heard the learned counsel for the revisionists at length. It is urged before me by the learned counsel for the revisionists that since injunction under 0. 39 r. l and 2 CPC was refused and temporary injunction was granted under Section 151 CPC hence appeal under 0. 43 r. l (r) CPC is not maintainable and only revision under Section 115 CPC could be filed. His next contention is that when an application under 0. 39 r. 1 and 2 CPC was rejected by trial court then it has no jurisdiction to pass injunction order in exercise of its inherent power conferred u/s. 151 CPC. According to the learned counsel the impugned order passed by learned trial Court is without jurisdiction. I have given my thoughtful consideration to the arguments raised by the learned counsel for the revisionists. First contention of the learned counsel for the revisionists has substance therefore it is ruled that in those cases where the learned trial courts refused to grant temporary injunction under 0. 39 r. 1 and 2 CPC and after rejecting the application for temporary injunction on under aforesaid provisions proceeded to grant injunction in exercise of its inherent jurisdiction u/s. 151 CPC in such cases no appeal under 0. 43 r. 1 (r) is maintainable and only revisional jurisdiction u/s. 115 CPC can be invoked. As regards second contention of the learned counsel for the revisionists it has no substance. Now under amended Section 115 CPC it is not enough to establish that there is jurisdiction error in the order passed by the court below but it is further required to establish that the conditions stipulated under proviso (a) and (b) of sub-section (1) of Section 115 CPC i. e. if it has been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings and secondly the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made are also required to be fulfilled as a condition precedent.
(3.) NOW for ready reference the provisions of amended Section 115 CPC are reproduced below : - "115 Revision :- (1) The High Court may call for the record of any case which has been decided by Court Subordinate to such High Court and in which no appeal lies thereto, and if such Subordinate Court appears - (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity. the High Court may make such order in the case as it thinks fit : Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding issue, in the course of a suit or other proceeding, except where : - (a) the order if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings, or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. (2) The High Court shall not under, this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court Subordinate there to. Explanation - In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding. " In my considered opinion since in the present case the mandatory conditions precedent under proviso (a) and (b) of sub section (1) of Section 115 are not fulfilled hence the instant revision petition is not entertainable. Nothing has been brought to my notice that if the order impugned is allowed to stand how it would occasion failure of justice or irreparable loss or injury to the revisionists. Second limb of the aforesaid argument advanced by the learned counsel for the revisionists before me is that once the application moved by the plaintiff under 0. 39 r. l and 2 CPC was rejected then learned trial court has no jurisdiction to invoke its inherent jurisdiction u/s. 151 CPC. ;