1. By this petition under Article 227 of the Constitution of India, the petitioner is assailing the judgment and order of the District Judge, Shillong dated 21.12.2012 passed in FAO No. 4(H)2011 for upholding the judgment and order dated 21.04.2011 passed by the Assistant District Judge, Shillong in Misc. Case No. 39(H)2009 (reference Partition Suit No. 12(H)2006) for temporary injunction restraining the petitioner from appropriating with the respondent/plaintiff’s one fifth share of the monthly rent collected from the 26 tenants in the suit property and further directed the petitioner to deposit the same in the Court till the partition suit, where there is no main prayer for injunction, is finally decided. The core issues posed for consideration in the present revision are:--

(i) Whether the prayer for temporary injunction (mandatory temporary injunction) can be granted in a suit for partition simpliciter, where there is no main prayer for injunction (one of the main relief)? and

(ii) Whether the Court can exercise the discretionary powers to grant temporary (mandatory) injunction without considering the three Golden Tests, viz:--

(a) Whether the plaintiff has a prima facie case;

(b) Whether the balance of convenience is in favour of the plaintiff;

(c) Whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed? And

(iii) Whether temporary injunction could be granted at the discretion of the Court in a case which falls under Section 41 of the Specific Relief Act, 1963?

2. Heard Mr. S. Sen, learned counsel appearing for the petitioner and Mr. S.S. Das, learned counsel appearing for the respondent.

3. Since this judgment is not required to give finding as to the claims made by the parties in their respective pleadings as that would be decided in the suit itself, this Court would not observe anything in this revision that may cause prejudice in disposal of the suit. As such, only the facts sufficient for deciding this revision are briefly noted.

4. The respondent/plaintiff filed the suit for partition simpliciter i.e. partition suit No. 12(H) 2006 in the Court of the Assistant District Judge at Shillong against the petitioner and others for the partition of the suit properties i.e. a plot of land including houses and other moveable properties etc. measuring 12,939 sq.ft. more or less situated at Jhalupara at Holding No. 3 of Jhalupara Bazar within Cantonment Areas of Shillong with heritable and transferable lease hold right under lease-hold patta dated 10.12.1965 granted by the Cantonment Board, Shillong and bounded as follows:--

North:

Plot No. 2.

South:

Plot No. 4.

East:

Cantonment land.

West:

Trenching ground road.

5. The relief sought for in the partition suit i.e. partition suit No. 12(H) 2006 are:--

“(a) A preliminary decree for partition of the properties in the suit according to the share of the parties;

(b) The appointment of a Commissioner for effecting the partition in terms of the preliminary decree;

(c) A final decree of partition embodying the Commissioner’s Report;

(d) The cost of the Suit;

(e) Any other relief/reliefs the plaintiff is entitled to”.

6. In the plaint of the partition suit No. 12(H) 2006, the respondent/plaintiff pleaded that the plaintiff’s share comes to 1/5th of the property (suit property) and the disputes and differences have arisen between the plaintiff and the defendants regarding the enjoyment and management of the suit property and it has become impossible for the plaintiff to possess the properties jointly with the defendants. In the plaint, nothing is mentioned about the tenants of the suit property and collection of the rent from the tenants.

7. No relief for injunction is sought for in the plaint. In other words, there is no prayer for injunction and also no pleadings regarding the tenants of the suit land. What are pleaded in the plaint, in gist, are that the plaintiff and defendants are possessing the suit properties (vide para-1 of the plaint) and