P.M. Maheshwaraiah and Another vs Sridhara and Another

Hari Nath Tilhari, J.—This revision application arises from order dated 6.9.1995 passed in Miscellaneous Appeal No. 19/1994 which had been preferred by the defendants challenging the order of temporary injunction granted by the Munsiff, Periyapatha, in favour of the plaintiffs-revisionists, on an application under order 39 Rule 1 of the CPC in O.S.No.38/94. As mentioned earlier, the Trial court had granted the injunction order dated 22-4-1994.

The Trial Court recorded the findings on question of prima facie case and balance of convenience in favour of the plaintiffs Revisionists. Against the above order findings of the trial court is Munsif the defendants preferred the appeal and the Lower Appellate Court set aside the order of temporary injunction. This Revision Petition is filed u/s 115 of the Civil Procedure Code, for short, ''code'' by the plaintiffs-Revisionists challenging the order of appellate court. I have heard the learned counsel for the Revisionists Sri. T.N. Raghupathy assisted by Sri. Krishnamurthy, who submitted that learned Lower Appellate court acted illegally with substantial irregularity in allowing the appeal without applying its mind to the plaintiffs'' application under Order 41 Rule 27 of the code and rejecting the application talking the view that scope of appeal is limited and application under Order 41 Rule 27 of the Code did not lay. The learned counsel for the plaintiffs-Revisionists submitted that the Lower appellate court committed error of jurisdiction in not allowing it, particularly when the ingredients of Order 41 Rule 27 were made out, as per the allegations made in the application which had not been denied by the defendants opposite parties. Once this is the position, the application under Order 41 Rule 27 of the Code could not be dismissed on the ground that scope of appeal is limited.

There is no dispute amongst the parties that Order 41 Rule 27 C.P.C. applies to Miscellaneous appeals as well and it has been rightly contended by the learned counsel for the Revisionists, as it is well laid down by this court In M/s Patel Enterprises v. MP. Ahuja, H R 1992(4) Kar 3772, that under Order 41 Rule 27 of the Code, there are certain conditions prescribed and if these condisons are established, party may be entitled to produce additional evidence. In the present case, the Lower appellate court has not recorded a finding to the effect that necessary ingredients required under Order 41 Rule 27 of the Code, have not been made out. The rejection of the plaintiffs application on such a ground by the Lower Appellate court is without applying its mind to the provisions of Order 41 Rule 27 of the1 code taking the view that the order does not apply, because, the scope of appeal is limited. In ray opinion, the learned Lower Appellate court has acted illegally in rejecting the application and not considering the documents before disposing of the appeal. When the material evidence has not been taken on record in an illegal manner, that is. without applying the mind to the provisions and the decision of the Trial had been reversed, in my opinion, the Appellate court has acted illegally in exercise of its jurisdiction. Therefore, the order deserves to be set aside. I think it will be proper that the appellate Court be directed to decide the appeal afresh after disposing of the application under Order 41 Rule 27 of the Code in accordance with law keeping in view the provisions of Order 41 Rule 27 of the Code itself. In case, the Appellate Court comes to the conclusion that the application has to be allowed, I am quite sure that the other party may be given opportunity of rebuttal. Having thus considered I am of the view this Revision petition deserves to be allowed and as such, it is hereby allowed. The judgment dated 6-9-1995, is set aside and a direction is issued to. the learned civil judge, Hunsur, to restore the Miscellaneous Appeal No. 19/1994, on its record and to decide afresh according to the observations made above. The appeal may be decided at the earliest within a period of not more than four months from the date of communication of this order.