An appellate court can interfere with the discretion exercised by a trial court in granting an ex parte temporary injunction only if it finds that the order is perverse or illegal.

Headnote:
INJUNCTION - TEMPORARY INJUNCTION - ORDER 39 RULE 2 CPC - APPEALABILITY - ORDER PASSED BY TRIAL COURT GRANTING EX PARTE TEMPORARY INJUNCTION - APPEAL MAINTAINABLE - APPELLATE COURT CAN INTERFERE WITH THE DISCRETION EXERCISED BY THE TRIAL COURT IF IT FINDS THAT THE ORDER IS PERVERSE OR ILLEGAL.
Fact of the Case:

Plaintiff filed a suit for a permanent injunction against the defendants and also prayed for a temporary injunction by filing an application under Order 39, Rule 2, of the Code of Civil Procedure. The Civil Judge, Senior Division, granted an ex parte temporary injunction to the plaintiff with notice to the defendants as to why it should not be made absolute till the final decision of the suit. Instead of showing cause to the notice issued to them, the defendants directly filed an appeal before the joint District Judge, who allowed the appeal and vacated the ex parte order of temporary injunction granted by the lower Court.
Finding of the Court:

The appellate court found that the defendants were in possession of the suit land in the years 1970-71 and 1972-73, even after the execution of the partition deed relied upon by the plaintiff. The court also found that the order passed by the trial court was not perverse or illegal.
Issues: Whether an appeal is maintainable against an order passed by a trial court granting an ex parte temporary injunction under Order 39, Rule 2, of the Code of Civil Procedure.
Ratio Decidendi: An appeal is maintainable against an order passed by a trial court granting an ex parte temporary injunction under Order 39, Rule 2, of the Code of Civil Procedure. However, the appellate court can only interfere with the discretion exercised by the trial court if it finds that the order is perverse or illegal.
Final Decision: The revision petition was dismissed and the order of the appellate court was upheld.

ORDER:- This revision petition has been filed by the original plaintiff against the order passed by the Joint District Judge, Akola, in Misc. Civil Appeal No. 21 of 1973 dated 10-8-1973. It appears from the record that the plaintiff filed a suit for a permanent injunction against the defendants and also prayed for a temporary injunction by filing an application under Order 39, Rule 2, of the Code of Civil Procedure. According to the plaintiff, the piece of land, namely, the northern side of Survey No. 128/2 situated at Malegaon had fallen to the share of the vendors in the family partition and the vendors were personally cultivating the said piece of land. He further contended that the crop-statements of the suit land from the year 1971 onwards were standing in the name of Namdeo Ganpat. Thereafter the plaintiff entered into an agreement to purchase the said land on 28-3-1973. He further contended that as prospective purchaser he was placed in possession and he ploughed the suit land and had done the summer operations. He filed an application for a temporary injunction against the defendants Nos. 1 to 3 as they were threatening to take over possession of the field. The Civil Judge, Senior Division, by his order dated 18-6-1973, on the basis of an application supported by an affidavit filed by the plaintiff, granted an ex parte temporary injunction to the plaintiff with notice to the defendants as to why it should not be made absolute till the final decision of the suit. It seems from the record that instead of showing cause to the notice issued to them, the defendants directly filed an appeal before the joint District Judge, Akola. The Joint District Judge allowed the appeal filed by the defendants and vacated the ex parte order of temporary injunction granted by the lower Court. He further directed that the learned Judge should give priority to the suit and dispose it of expeditiously. Against this order the present revision application has been filed.

2. Shri R.E. Deshpande, learned counsel for the applicant, contended before me that the learned Judge of the Appellate Court committed an error of law in interfering with the ex parte order passed by the lower Court. According to the learned counsel, the learned Judge of the trial Court had exercised the discretion judiciously. He had also issued a notice to the defendants to show cause as to why the ex parte injunction issued should not be confirmed. Instead of showing any cause, they directly approached the Appellate Court and the Appellate Court, on the basis of some reasoning which is based on his conjectures, has interfered with the well-reasoned order passed by the trial Court. Therefore, according to the learned counsel, the order passed by the appellate Court is illegal, or in any case, is vitiated by material irregularities. The learned counsel has further brought to my notice the observations of the learned Judge of the Appellate Court that the order passed by the trial Court was not perverse. According to the learned counsel, once such a finding is recorded that the order passed by the trial Court is not perverse, then it was not open for the learned Judge of the Appellate Court to have substituted his discretion in place of the discretionary order passed by the trial Court.

3. It is no doubt true that instead of showing cause in pursuance of the notice issued by the trial Court to the defendants as to why the ex parte injunction granted should not be confirmed, the defendants preferred to file an appeal. It would have been better if the defendants had appeared before the trial Court and had placed before it all the relevant material. However, for this reason only it cannot be said that the appeal filed by the defendants was not maintainable. Such a view has been taken by the Allahabad High Court in Zilla Parishad v. B.R. Sharma, AIR 1970 All 376 (FB) as well as by the Andhra Pradesh High Court in Andhra University v. P.V.N. Raju, (1974) 2 Andh WR 17. It cannot be disp

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1975 Supreme(Bom) 205

Bombay High CourtDHARMADHIKARIS.K.Jusa - AppellantVersusGanpat Dagdu Gire - RespondentDecided On : 09/02/1975

An appellate court can interfere with the discretion exercised by a trial court in granting an ex parte temporary injunction only if it finds that the order is perverse or illegal.

Bombay High Court
DHARMADHIKARI
S.K.Jusa - Appellant
Versus
Ganpat Dagdu Gire - Respondent
Decided On : 09/02/1975