Wednesday, 10 April 2019

Whether high court can revive injunction in writ petition which was rejected by trial court?

 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.

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  Vs  Taluka Tokrekoli
(Ambiga Samaji C Vikas Sangh
Indi) (Earlier Gangamath Sangha)
& Anr. 
Abhay Manohar Sapre, J.
Dated:February 25, 2019

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
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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.
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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 30x55=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 30x40
and further 15x30 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 30x40
and further 15x30 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 30x55=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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