26 May 2020


Judgments

High Court of Gauhati

Ibrahim Ali Barbhuiya and Ors. Vs. Musstt Rustana Begum and Ors.

MANU/GH/0500/2018

05.06.2018

Civil

Without making a prayer for permanent injunction in plaint, no temporary injunction can be granted

By filing Review Petition, the Petitioners have prayed for review of the said order dated 15th September, 2017. In the review application, the Petitioners have stated that, they are in actual possession of the land described in Schedule 2 to 5 of the plaint and it is projected that after dismissal of the suit, the contesting Respondents were threatening to dispossess the Petitioners from the suit land and, as such, the Petitioners apprehend that, the Petitioners may either be dispossessed from the suit property during the pendency of the connected appeal, or that suit land may be disposed of. The connected I.A.(C) is an application under Section 94(c), read with Section 151 of Code of Civil Procedure, 1908 (CPC), wherein the review petitioner have prayed for ad-interim injunction for restraining the opposite parties from disturbing the possession of the Petitioners in respect of the land.

In the review application, there is no statement that the English translated copy of the plaint as presented in the review petition or as enclosed to the memo of appeal was incorrectly translated and typed which contained incorrect facts. It is by way of an additional affidavit filed on 07th March, 2018 that another English version of the plaint has been filed and it is been projected that, the previously filed copy of the plaint was incorrect. Under the circumstances, present Court is accepting the submissions made by the Respondents that, in the absence of any statement by the Petitioner that there any error in translating and filing the copy of the plaint filed in the connected RFA 63/2016, the existence of mistake cannot be accepted on a mere oral submissions made by the Petitioners.

The provisions of Order XLVII Rule 3 of CPC provides for the form of review and it is prescribed that, the provisions as to the form of preferring appeals shall mutatis mutandis apply to an application for review. Therefore, it is envisaged that the application for review should be based on the grounds on which such review is preferred in terms of Order XLI Rule 1(2) of CPC, which provides for contents of memorandum of appeal. The provisions of Order XLI Rule 2 of CPC provides for the grounds which may be taken in appeal and it is prescribed that, the Appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal and it is further circumscribed by proviso of Rule 2 of Order XLI of CPC to the effect that, Court shall not rest its decision on any other ground unless the party may be effected thereof has had a sufficient opportunity of contesting the case on that ground.

Previous application for injunction vide I.A.(C) 1632/2016 was under Order XXXIX Rules 1 and 2 CPC, as such, it cannot be accepted that, in the subsequent prayer for ad-interim injunction, there was any situation not covered by the provisions of Order XXXIX Rules 1 and 2 of CPC in this regard, it is required to be mentioned that, present Court in the case of Gadadhar Barman Vs. Ranendra Mohan Paul, had held that without making a prayer for permanent injunction in the plaint, no temporary injunction can be granted.

Court does not find present case to be fit case for grant of ad-interim injunction more so, in view of the fact that, by the order dated 19th September, 2017 under review, not only this Court had dismissed the prayer for ad-interim injunction made by I.A.(C) 1632/2016, but the ad-interim injunction passed earlier was set aside in connection with I.A.(C) 1345/2017. Review Petition as well as application dismissed.

Relevant

Gadadhar Barman Vs. Ranendra Mohan Paul, MANU/GH/0110/1997
: (1998) 1 GLJ 22 : (1998) 1 GLR 383 : 1998 (1) GLT 137

Tags : Possession Injunction Grant

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