M/s. Anand Associates Vs. Nagpur Improvement Trust & Ors.
EmailAppeal: Civil Appeal No. 2152 of 2000
(Arising out of S.L.P. (C) No.9734 of 1999)
Petitioner: M/s. Anand Associates
Respondent: Nagpur Improvement Trust & Ors.
Apeal: Civil Appeal No. 2152 of 2000
(Arising out of S.L.P. (C) No.9734 of 1999)
Judges: A.P MISRA & R.P. SETHI, JJ.
Date of Judgment: Mar 16, 2000
Head Note:
PRACTICE AND PROCEDURE
Civil Procedure Code, 1908
Order 39, Rules 1 and 2 – Application for temporary injunction – Application rejected by trial court – Simultaneously suit for declaration etc. also dismissed – Correctness. Held that dismissal of suit was improper. Suit was ordered to be restored. (Para 3)
JUDGEMENT:
ORDER
1. The present proceeding are initiated through a suit by the Appellant who was the highest bidder in an auction and who was to deposit within the stipulated time a sum of Rs. 7,75,000/-. However, in spite of the extended time, he could not deposit and hence his allotment was cancelled through letter dated 11.9.1990. Hence the Appellant filed the suit, for declaration and permanent injunction and also for setting aside of the cancellation order dated 11.9.1990. The trial court while dismissing the Appellant’s application for temporary injunction, passed the following
order:
“The Plaintiff/Appellant application for grant of Temporary injunction restraining the defendants or its officials or other person acting on its behalf in not cancelling the suit plot vide letter dated 11.9.1990 and further to restrain them from auction-ing the suit plot no. 10-A, Sakkardara, Ayurvedic Layout is hereby rejected. The Plaintiff’s suit is also stand dismissed.”
2. The grievance of the Appellant is that the trial court illeg-ally while disposing of the application for the temporary injunc-tion, dismissed the suit itself. The submission is that on or before this date, neither any issue was framed nor any evidences were led, hence the court should not have dismissed the whole suit. Aggrieved by this, the Appellant filed an appeal but the Appellate Court dismissed the same. It held since no decree was passed, no appeal lie against it. In view of this, appeal itself was dismissed. Against that, he filed the second appeal and the High Court also failed to consider this question and dismissed the second appeal on the ground that no substantial question of law is involved. Hence, he filed the present appeal.
3. Having heard learned counsel for the parties, we fined that the trial court only took up to decide the application for tempo-rary injunction not the suit itself. While disposing of the same, the trial court also dismissed the suit itself. This part of the order cannot be sustained. As we have said above by that date neither any issues was framed nor any evidence was led. The courts below did not examine case from this perspective. So far dismissing the application for temporary injunction, we find no error was committed which requires any interference. So, while upholding the orders rejecting application for temporary injunc-tion, we set aside the other part of the order of the courts below which dismisses the suit itself. The case is remitted back to the trial court for deciding the suit in accordance with law. It shall be open to the parties to raise all such questions as is permissible in law. Any observation made while disposing of the said interim application is without prejudice and will not forbid the parties to raise all such questions as permissible in law. The appeal is partly allowed. Costs on the parties.
1. The present proceeding are initiated through a suit by the Appellant who was the highest bidder in an auction and who was to deposit within the stipulated time a sum of Rs. 7,75,000/-. However, in spite of the extended time, he could not deposit and hence his allotment was cancelled through letter dated 11.9.1990. Hence the Appellant filed the suit, for declaration and permanent injunction and also for setting aside of the cancellation order dated 11.9.1990. The trial court while dismissing the Appellant’s application for temporary injunction, passed the following
order:
“The Plaintiff/Appellant application for grant of Temporary injunction restraining the defendants or its officials or other person acting on its behalf in not cancelling the suit plot vide letter dated 11.9.1990 and further to restrain them from auction-ing the suit plot no. 10-A, Sakkardara, Ayurvedic Layout is hereby rejected. The Plaintiff’s suit is also stand dismissed.”
2. The grievance of the Appellant is that the trial court illeg-ally while disposing of the application for the temporary injunc-tion, dismissed the suit itself. The submission is that on or before this date, neither any issue was framed nor any evidences were led, hence the court should not have dismissed the whole suit. Aggrieved by this, the Appellant filed an appeal but the Appellate Court dismissed the same. It held since no decree was passed, no appeal lie against it. In view of this, appeal itself was dismissed. Against that, he filed the second appeal and the High Court also failed to consider this question and dismissed the second appeal on the ground that no substantial question of law is involved. Hence, he filed the present appeal.
3. Having heard learned counsel for the parties, we fined that the trial court only took up to decide the application for tempo-rary injunction not the suit itself. While disposing of the same, the trial court also dismissed the suit itself. This part of the order cannot be sustained. As we have said above by that date neither any issues was framed nor any evidence was led. The courts below did not examine case from this perspective. So far dismissing the application for temporary injunction, we find no error was committed which requires any interference. So, while upholding the orders rejecting application for temporary injunc-tion, we set aside the other part of the order of the courts below which dismisses the suit itself. The case is remitted back to the trial court for deciding the suit in accordance with law. It shall be open to the parties to raise all such questions as is permissible in law. Any observation made while disposing of the said interim application is without prejudice and will not forbid the parties to raise all such questions as permissible in law. The appeal is partly allowed. Costs on the parties.
