Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, = when the plaintiff’s injunction application stood dismissed by the Trial Court and the same was not carried in appeal at his instance, the same could not have been revived by the High Court in a writ petition filed by the plaintiff. We are, therefore, unable to agree with the view taken by the High Court as the High Court neither examined the facts of the case properly nor the legal questions arising in the case, therefore such order is legally unsustainable.


Hon’ble Mr. Justice Abhay Manohar Sapre

NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 2013 OF 2019
(Arising out of S.L.P.(C) No.23249 of 2018)
Shri Revansiddeshwar Pattan
Sahakari Bank Niyamit ….Appellant(s)
VERSUS
Taluka Tokrekoli
(Ambiga Samaji C Vikas Sangh
Indi) (Earlier Gangamath Sangha)
& Anr. ….Respondent(s)

J U D G M E N T
Abhay Manohar Sapre, J.

  1. Leave granted.
  2. This appeal is filed against the final judgment
    and order dated 28.06.2018 passed by the High Court
    of Karnataka at Kalaburagi in Writ Petition No.203932
    1 1
    of 2015 whereby the High Court partly allowed the writ
    petition filed by respondent No.1 herein.
  3. A few facts need mention infra for the disposal of
    this appeal, which involves a short question.
  4. The appellant is defendant No. 2, respondent No.
    1 is the plaintiff and respondent No. 2 is defendant No.
    1 in O.S. No.445/2013 before the Court of Civil Judge,
    Indi at Indi.
  5. Respondent No. 1 has filed a civil suit against
    respondent No. 2­Deputy Commissioner, Bijapur
    (defendant No. 1) and the appellant (defendant No. 2).
    The suit is for a declaration and injunction in relation
    to the suit land as detailed in the plaint.
  6. In this suit, the plaintiff (respondent No. 1 herein)
    as well as defendant No. 2 (appellant herein) both filed
    an application for grant of injunction against each
    other under Order 39 Rules 1 and 2 read with Section
    151 of the Code of Civil Procedure, 1908 being IA No.1
    and IA No.2 respectively.
    2 2
  7. The Trial Court by order 10.03.2014 dismissed
    both the applications. Defendant No. 2 (appellant
    herein) felt aggrieved by the dismissal of his
    application (IA No.2) filed Misc. Appeal No. 7/2014 in
    the Court of Senior Civil Judge & JMFC, Indi. By order
    dated 16.07.2015 (Annexure P­9), the appellate Court
    allowed the appeal and granted injunction which reads
    as under:
    “The appeal filed by the defendant
    No.2/appellant is allowed.
    The orders passed by the Trial Court, Civil
    Judge & JMFC, Indi on I.A.No.2 filed by
    defendant No.2/appellant under Order 39
    Rules 1 and 2 of CPC in O.S. No.445/2013
    dated 10.3.2014 is hereby set aside.
    The plaintiff/respondent No.1 is hereby
    restrained from causing obstruction to the
    defendant No.2/appellant in making
    constructing over the property as prayed in
    the application I.A.No.2 till the disposal of
    suit.
    No order as to costs.”
  8. The plaintiff (respondent No. 1) felt aggrieved and
    filed W.P. No.203932/2015 in the High Court of
    3 3
    Karnataka, Kalaburagi and questioned its legality and
    correctness. By impugned order, the Single Judge of
    the High Court partly allowed the writ petition filed by
    the plaintiff (respondent No. 1). The High Court
    confirmed the injunction granted to defendant No. 2 by
    the Appellate Court and at the same time also granted
    injunction in favour of the plaintiff and restrained
    defendant No. 2 from interfering in plaintiff’s
    possession. The order reads as under:
    “Therefore, the petition is partly allowed.
    The order dated 16.7.2015 passed by the
    appellate Court, i.e., the Senior Civil Judge
    and JMFC, Indi, in Miscellaneous Appeal
    No.07 of 2014 granting injunction to the
    defendants with respect to property bearing
    CTS No.1336A/1B1B/1A1A/1A1A/29
    measuring 30×55=1650 sq. ft. situated at Indi
    is confirmed. At the same time, the
    application filed by the plaintiff for
    injunction against the defendants with
    respect to property bearing CTS
    No.1336A/1B/1A/1/1A/1A measuring 30×40
    and further 15×30 situated at Indi is allowed.
    The defendants are restrained from
    interfering in the peaceful possession of the
    plaintiff’s property bearing CTS
    No.1336A/1B/1A/1/1A/1A measuring 30×40
    and further 15×30 situated at Indi. The
    plaintiff is restrained from interfering in the
    4 4
    defendants’ possession of property bearing
    CTS No.1336A/1B1B/1A1A/1A1A/29
    measuring 30×55=1650 sq.ft. situated at
    Indi.”
  9. It is against this order of the High Court,
    defendant No. 2 has felt aggrieved and filed this appeal
    by way of special leave in this Court.
  10. So, the short question, which arises for
    consideration in this appeal, is whether the High Court
    was justified in allowing the plaintiff’s writ petition in
    part.
  11. Having heard the learned counsel for the parties
    and on perusal of the record of the case, we are
    inclined to allow the appeal and while setting aside the
    impugned order remand the case to the High Court for
    hearing the writ petition afresh in accordance with
    law.
  12. The need to remand the case to the High Court
    has occasioned for the reason that firstly, the High
    Court did not assign any reasons for allowing the writ
    5 5
    petition and secondly, the High Court seemed to have
    passed somewhat inconsistent order.
  13. It is clear from the fact that the High Court
    allowed the injunction application made by both the
    parties against each other though the writ petition was
    filed by the plaintiff against the appellate order, which
    was passed only on the injunction application filed by
    defendant No. 2 ( IA No.2) in their favour.
  14. In other words, the only question before the High
    Court was whether the Appellate Court was justified in
    allowing the defendant No.2’s appeal and in
    consequence was justified in allowing his (defendant’s)
    injunction application (I.A.No.2) made against the
    plaintiff seeking injunction in relation to the suit
    property.
  15. The reason was that it was not in dispute that
    the plaintiff did not challenge before the Appellate
    Court that part of the order of the Trial Court by which
    his injunction application was dismissed.
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  16. In this view of the matter when the plaintiff’s
    injunction application stood dismissed by the Trial
    Court and the same was not carried in appeal at his
    instance, the same could not have been revived by the
    High Court in a writ petition filed by the plaintiff.
  17. We are, therefore, unable to agree with the view
    taken by the High Court as the High Court neither
    examined the facts of the case properly nor the legal
    questions arising in the case, therefore such order is
    legally unsustainable.
  18. The appeal is accordingly allowed. The impugned
    order is set aside. The case is remanded to the High
    Court for deciding the writ petition afresh on its merits
    in accordance with law.
    .……………………………………..J.
    [ABHAY MANOHAR SAPRE] ……………………………………….J.
    [DINESH MAHESHWARI]
    New Delhi;
    February 25, 2019
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