The appellate court may grant a temporary injunction even if the trial court dismisses the suit, based on exceptional circumstances and the equities of the case.

( 1 ) THE appellant was the plaintiff in O. S. No. 244 of 1968 on the file of the Court of the Munsiff, Buntwal (South Kanara ). That was a suit for permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule properties. During the pendency of the suit, the trial Court granted a temporary injunction. The suit was decreed in part. The plaintiff preferred r. A. No. 74 of 1973 in the Court of the Civil Judge at Mangalore. In the said appeal the plaintiff-appellant made an application for an order of temporary injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiff of the properties in respect of which the suit had been dismissed. The learned Civil Judge rejected that application on the ground that this Court in 1971 (1) Mys. L. J. Notes of Recent Cases, Item No. 165, has held that where the trial Court dismisses the suit, the appellate Court is not entitled to make an order of temporary injunction. The learned Civil Judge has read the decision as laying down that under no circumstances an order of temporary injunction can be made by the appellate Court when the trial Court dismisses the plaintiff's suit. That is not the correct view of the law. Ordinarily, where the original Court after trial records a finding that the plaintiff is not in possession and the suit is dismissed on that ground, it would not be a fit case for ordering temporary injunction by the appellate Court during the pendency of the appeal. There may however be exceptional circumstances justifying the appellate Court in making an order of temporary injunction. It is not possible to lay down all the circumstances under which an order of temporary injunction can be made. Each case has to be dealt with on its own merits. If before the trial Court the plaintiff had the benefit of an order of temporary injunction until the disposal of the suit and before the appellate Court, he is able to show that irreparable damage would be caused to him if the order of temporary injunction is not continued, the appellate Court may grant an order of temporary injunction if the equities of the case warrant the making of such an prder. While making such an order the appellate Court may impose terms on the appellant to safeguard the interests of the respondent if the appeal ultimately fails. The order of the Court below, therefore, is clearly erroneous and cannot be sustained.

( 2 ) I, therefore, allow this appeal, set aside the order of the Court below and remand the matter for disposal in accordance with law. It is ordered accordingly. No costs.

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