George @ Saji and Another vs Bhakhtawarlal

R.R. Yadav, J.—In the instant revision petition show cause notice was issued on 23.10.97 to the sole opposite party. The opposite party is represented by his counsel Mr. O.P. Mehta. Although after due service of show cause notice on the opposite party the revision petition is posted today for admission yet with the consent of the Learned Counsel for the panics I propose it off finally on merits at admission stage.

The revisionists have filed this revision petition against the order dated 12.9.97 passed by learned Additional District Judge No. 1, Udaipur in Civil Appeal No. II of 19%. reversing the order dated 26,10.95 passed learned Civil Judge (Jr. Division) Udaipur (South). Udaipur in Civil Misc. Case No. 294/95.

Without delineating the facts in detail, the admitted relevant facts which necessitated the revisionists to file the present revision petition are that the opposite party filed Original Civil Suit No. 363/93 for permanent injunction along with an application under Order 39 Rule 1 and 2 CPC. The application under 0.39 R1 and 2 CPC was allowed by the learned trial court on 17.1.94 restraining the defendant-revisionists from raising any construction over 5 fee of lane in between two constructions of the parties. The defendant-revisionists were further restrained by the learned trial court from creating any obstacles in egress and ingress of the opposite party over the lane and were also directed to maintain status quo.

Aggrieved against the order passed by the learned trial court on 17.1.94 the revisionists filed a misc. appeal before the appellate court. The appellate court by its order dated 16.9.95 affirmed the temporary injunction dated 17.1.94 granted by the learned trial court and dismissed the appeal with a further direction to the revisionists to remove 5 feet wall forthwith, which they have raised.

It is borne out from perusal of the record that after dismissal of the appeal on 16.9.95, the present revisionists filed a counter-claim along with an application under 0.39 R. 1 and 2 CPC alleging that the opposite party by way of fixing on iron gate over the lane in dispute arc attempting to block their egress and ingress over the disputed lane. The aforesaid application moved by the revisionists was allowed by the learned trial court by its order dated 26.10.95.

Dissatisfied with the order passed by the learned trial court, the opposite party filed an appeal and the appellate court by its order dated 12.9.97 set-aside the aforesaid order passed by the learned trial court dated 26.10.95 holding that the learned trial court after deciding the earlier was affirmed by the appellate court with modification on 16.9.95 has no jurisdiction to pass a fresh temporary injunction order without recording a finding about fresh ground which necessitated to pass such a subsequent temporary injunction. Against the aforesaid reversal order of the learned appellate court dated 12.9.97 the revisionists have filed this revision as slated hereinabove.

I have heard the Learned Counsel for the parties and carefully gone through with the materials available on record.

It is strenuously urged by the Learned Counsel for the revisionists Mr. Suresh Shrimalee that besides filing a counter-claim the revisionists were entitled to file a fresh application for temporary injunction under 0.39 R. 1 and 2 CPC restraining the opposite party from fixing an iron gate blocking their egress and ingress as envisaged under sub-rule(4) of Rule 6-A of Order 8 CPC. According to Mr. Shrimalee unless the findings of irreparable loss and hardship recorded by the learned trial court in favour of the revisionists in its order dated 26 10.95 are set-aside, the learned appellate court was not justified in passing the order impugned.

As against it. the Learned Counsel appearing on behalf of the opposite party urged that even for arguments sake the argument of the Learned Counsel for the revisionists is conceded to be correct even then the revisionists are to establish fresh cause of action and fresh ground for granting fresh temporary injunction. It is urged by the Learned Counsel for the opposite party that in fact existence of iron gate over the land in dispute was in issue between the parties in earlier proceedings for grant of temporary injunction, therefore, it cannot be said to be a fresh ground. Supporting the order impugned the Learned Counsel for the respondent contended that the learned first appellate court was hot under legal obligation to deal with the finding of irreparable loss and hardship recorded by the learned trial court in its order dated 12 9.9'' because these findings were involved in the earlier proceedings and had already been decided in favour of the opposite party though in Ms order impugned dated 12.9.97 the learned appellate court has reiterated the aforesaid findings recorded in the Cartier appeal decided by it on 16.9.95.

Having given my thoughtful consideration to the rival contentions raised at the 3ar I am of the view that there is substance in the arguments of the Learned Counsel for the opposite party Although the revisionists are enabled the file a counterclaim and their counter claim is to be treated a suit within the meaning of sub-rule 4 of Rule 6-A of Order 8 CPC and they were also entitled to file a fresh application for temporary injunction under O.39 R. Land 2 CPC yet in my humble opinion no fresh injunction order can be granted on the same facts which were in existence at the time of passing the earlier order of injunction by the learned trial court on 17.1.1194. which was affirmed in appeal.

I have no hesitation to hold that for granting temporary injunction an applicant is to establish a prima-facia case, balance of convenience and co-existence of the aforesaid three conditions precedent before granting temporary injunction and if any one of them is found to be missing an applicant is not entitled to obtain temporary injunction-. To my mind, in the present case, no fresh injunction should have been granted by trial court on the same facts which were in existence at the time of passing the earlier order of injunction by the learned trial court on 17.1.1994, which was affirmed in appeal by the appellate court on 16.9.95.

Thus, the learned trial com. has committed jurisdictional error in passing fresh temporary injunction order on the basis of the same facts which were in existence at the time of passing the earlier order of injunction by it on 17.1.94, which was affirmed in appeal by the appellate court on 16.9.95. The, learned trial court has passed the fresh temporary'' injunction on the basis of commissioner''s report dated 2.0.10.95 under misapprehension that after dismissal of the appeal by the learned appellate court on 16.9.95 the opposite party has affixed an iron gate blocking the egress and ingress of the revisionists. As a matter of fact, the iron gate was in existence before 17.1.94, when the initial injunction order was passed by the learned trial court and it was point in issue between the parties.

At tins stage it is to be noticed that while granting initial temporary injunction on 17.1.94 the learned trial com. has also examined the prima-facia title over the lane in dispute and it was found that the opposite party had a prima-facia title over the lane in dispute as he had purchased it through registered sale-deed from Panchayat whereas the present revisionists were found to have committed trespass and later on found to have made attempt to regularise the lane in dispute.

In view of the facts and circumstances found by the learned trial court while granting initial temporary injunction in favour of the opposite party on 17 1.94, which was affirmed by the appellate court on 16.9.95, it can safely be held that the learned trial court had no jurisdiction to pass the subsequent temporary injunction in favour of the revisionists and the learned appellate court has committed no jurisdictional error in setting aside such order of the learned trial court. I am also of the view that if the order impugned is allowed to stand it would neither occasion a failure of justice nor cause any irreparable injury to the revisionists.

Before parting with the order I would like to observe that whatever observations made by this Court or by trial court or by appellate court will not come in the way of the parties at the time of decision of the suit on merits.

As a result of aforementioned discussion the revision petition lacks merit and it is hereby dismissed at admission stage. However, looking into the facts and circumstances of the case the learned trial court is directed to decide the suit on merit between the parties expeditiously, preferably within one year from today.