FLRM ISHARDAS DEVI CHAND & ANR. versus R. B. PARKASH CHAND & ANR.

Citation: [1969] 3 S.C.R. 677 · Decided: 13-02-1969 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Dismissed

Judgment (excerpt)

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FlRM ISHARDAS DEVI CHAND .t ANR. 
v. 
R. B. PARKASH CHAND & ANR. 
February 13, 1969 
[S. M. S!KRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.] 
Code of Civil Procedure, O .. XXXIX r. 2 and 0. XLIIJ r. 1--0rder of 
trial cour( dismissing an application 
for 
temporary 
injunction on the 
gr"und that it did not satisfy the terms of 0. XXXIX r. 2 war an order 
under thar rule-It wds appealable under 0. XLIII r. 1. 
The appellants who claimed to be tenants of the respondents in respect 
of certain premises in Amritsar brought a auit for a permanent injunction 
restraining the latter 1from taking possession of the said premises in execu-
tion of an eviction order obtained by the respondent against the appellant 
and another, as per Rent Controller's order dated February 22, 1967. They 
also filed a J?!!tition purporting to be under 0. 39 r. 2 and s. 151 of the 
Code of Civil Procedure for !lfant of a temporary injunction till the dis-
posal of the suit. The trial court, namely the sub-Judge, found that the 
appellants were sub-tenants 'and not tenants and that the liability to be 
ejected in execution of a valid Order could not be said to be an 'injury' 
within 0. 39, r. 2. On this view the trial court dismissed the application 
'for temporary injunction. The appellants filed an appeal befere the Dis-
trict Judge which was dismissed on the preliminary ground that no appeal 
lay. 
The High Court dismissed the revision filed by the appellants in 
limine. With special leave the appellants came to this Court. 
HELD : (i) The order of the trial court was clearly appealable under 
0. XLIII r. I C.P.C. which provides inter alia for an appeal against an 
order under 0. XXX1X r. 2. [679 DJ 
It was common ground that tho appellants filed an application under 
0. XXXIX rr. 1 and 2 and s. 151 C.P.C. .Tho learned Sub-Judge had to 
consider whether this application was competent or not competent under 
r. 2 of 0. XXXIX. In deciding that no such application 'Jay under 
0. XXXIX r. 2 on the ground that -what the appellants were complaining 
of. was not an injury within 0. XXXIX r. 2 he was passing an order under 
0. XXXIX r. 2 itself. 
In appeal the appellants could contend that the 
learned_ Sub-Judge had misconstrued 0. XXX1X r. 2 including the. word 
'injury'!679 Fl 
Thel' ~reliminary objection of the respondent before the learned Dis-
trict Judge that the order of tho S'Jb-Judge was passed under s. 151 C.P.C. 
and not under 0. XXXIX rr. 1 and 2 C.P.C. w .. not sound because in 
holding that 0. XXXIX r. 2 did not apply the learned Sub-Judge was not 
exercising his inherent powers. [679 G-H] 
Hemant Kumar v. Ayodhya Prasad, A.I.R. 1957 M.B. 95 and Abdul 
Hamid Khan v .. Tridip Kumar Chanda, A.LR. 1953 Ass. 104, referred 
to. 
(ii) On merit! however tho appeal had to be dismissed .. there was 
not much to be said in favour of issuing a temporary injunction because 
the appellants had not made out a prima facie cllllC. In the exercise of its 
powers under Art. 136 interference by this Court with the order of the 
district Judge would not be justified. [680 D] 
678 
SUPRBM! COURT REPORTS 
[1969] 3 S.C.R. 
CIVIL APPELLATE JURISD!CT[ON : Civil Appeal No. 1709 of 
A 
1968. 
Appeal by special leave from the judgment and order dated 
May 22, 1968 of the Punjab and Haryana High Court in Civil 
Revision No. 422 of 1968. 
Bishan Narain, B. Datta and 0. C. Mathur, for the appellants. 
B 
M. S. Gupta aind S. K. Dhingra, for respondent No. 1. 
The Judgment of the Court was delivered by 
Sikri, J. This appeal by special leave arises out of the order 
dated July 20, 1967, of Sub-Judge, Amritsar, dismissing an appli-
cation under 0. XXXIX rr. 1 & 2, C.P.C., and s. 151, C.P.C., 
filed by the appellants .for grant of a temporary injunction till the 
disposal of the suit brought by the appellants. 
The appellants 
filed an appeal against that order to the District Judge, Amritsar, 
who upheld the preliminary objection of the respondents that no 
appeal lay against that order on the ground that the order was 
passed under s. 151, C.P.C., and not under O. XXXIX rr. 1 & 2. 
The High Court dismissed the revision filed by the appellants 
in limine. 
The appellants having obtained special leave the matter 
is before us. 
The relevant facts may be shortly stated. Firm Ishar Das Devi 
Chand a:nd its two partners, Devi Chand and Manohar Lal. 
brought a suit for a permanent injunction restraining R. B. Par-
kash Chand, respClflldent before us, from

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