iranagouda Basanagouda Biradar Vs. Basanagouda Veeranagouda Biradar - Court Judgment

Excerpt:

civil procedure code, 1908 (central act no. 5 of 1908) - order 39 rule 4 - no appeal lies unless application by aggrieved party to vacate or modify order of temporary injunction granted by trial court. - karnataka civil services (classification, control & appeals) rules, 1993 domestic enquiry: [s. abdul nazeer, j] request of a delinquent / employee seeking assistance of an advocate to cross-examine the management witnesses rejection of - held, examination ow witness by adverse party is called the cross examination. it is the most effective of all means of extracting the truth and exposing falsehood. it is not an empty formality, but the valuable right to substantiate the defence. it is true that if the allegations are simple, the disciplinary authority need not permit the petitioners to appoint a lawyer to defend their case, which is not so in the present case. it is their specific case that they are illiterate persons and that they are not in a position to cross-examine the expert witnesses of the management. the charges are as serious as to entail dismissal from service. in the circumstances, denial of assistance of a lawyer amount to denial of a real and..........was dismissed was that the defendants did not prefer a petition to vacate the interim injunction before the trial court itself as required under order 39 rule 4 of c.p.c. order 39 rule 4 of c.p.c. states that any order of injunction may be discharged or varied or set aside by the court on an application made thereto by any party dissatisfied with the order, and the appeal was to be preferred under order 43 rule 1(r) of c.p.c. this court has taken the view that unless there is an application made by the aggrieved party to vacate the order or modify the order of temporary injunction granted by the trial court, no appeal shall lie.3. the learned counsel for the defendant relied on a judgment reported in : air1982kant105 , parijatha and ors. v. kamalaksha nayaka and ors., wherein this court has held that no appeal lies against an exparte order of injunction under order 39 rules 1 and 2 of cpc and the remedy for the aggrieved person even if he is a stranger is to move the trial court of the first instance. a similar view has been taken in the case of vokkaligara sangha v. pradeep, : ilr1994kar1653 , where this court has held that order in the nature of mandatory injunction will.....

Judgment:

ORDER

Kumar Rajaratnam, J.

1. The defendants in Suit O.S.No. 275/1989 have preferred this Revision Petition. The plaintiff filed a suit O.S.No. 275/1989 for permanent injunction. He also filed I.A.No.I for temporary injunction. Although the defendants were represented, they took various adjournments to file objections to I.A.No.I. On 5.3.1990 since the defendants failed to file objections, the learned Munsiff allowed I.A.No.I and granted temporary injunction. Against that the defendants had preferred an appeal M.A.No. 17/1990. The Appeal M.A.No. 17/1990 was also dismissed. Aggrieved by the dismissal of the appeal by the Appellate Court, the defendants have preferred this Revision Petition.

2. The short ground on which the appeal was dismissed was that the defendants did not prefer a petition to vacate the interim injunction before the trial Court itself as required under Order 39 Rule 4 of C.P.C. Order 39 Rule 4 of C.P.C. states that any order of injunction may be discharged or varied or set aside by the Court on an application made thereto by any party dissatisfied with the order, and the appeal was to be preferred under Order 43 Rule 1(r) of C.P.C. This Court has taken the view that unless there is an application made by the aggrieved party to vacate the order or modify the order of temporary injunction granted by the trial Court, no appeal shall lie.

3. The learned Counsel for the defendant relied on a Judgment reported in : AIR1982Kant105 , Parijatha and Ors. v. Kamalaksha Nayaka and Ors., wherein this Court has held that no appeal lies against an exparte order of injunction under Order 39 Rules 1 and 2 of CPC and the remedy for the aggrieved person even if he is a stranger is to move the trial Court of the first instance. A similar view has been taken in the case of VOKKALIGARA SANGHA v. PRADEEP, : ILR1994KAR1653 , where this Court has held that order in the nature of mandatory injunction will not lose its character though the order is passed by invoking Order 39 Rules 1 and 2 of C.P.C. and therefore the only remedy to the appellants is to approach the jurisdictional Court and file an application for setting aside the order under Order 39 Rule 4. Without invoking such a procedure, if any appeal is filed, it is not maintainable. The learned Counsel for the defendant also relied on : ILR1993KAR3275 , Gopal Ahuja v. Sanman Distributors (P) Ltd.

4. In that view of the matter, the Appellate Court has rightly dismissed the appeal and no interference is called for while exercising my powers of Revision under Section 115 of C.P.C. However, there was an order of status quo by this Court on 20.3.1992. This order of status quo shall remain in force for two months from today to enable the petitioners to approach the trial Court to modify the order or to vacate the temporary injunction. If such an application is made, the trial Court will dispose of the matter in accordance with law without being influenced by the order passed by the Appellate Court or by this Court.