SHAHDEV vs LEHRI KHAN AND 2 OTHERS
This civil revision arises from a suit for declaration and consequential relief filed by the petitioner, where the trial court initially granted a temporary injunction. Upon appeal by the respondents, the District Judge vacated the injunction and dismissed the entire suit on the grounds of res judicata. The core legal question before the High Court was whether an appellate court, hearing an appeal strictly against an interlocutory order granting a temporary injunction, possesses the jurisdiction to dismiss the main suit itself. The High Court held that the District Judge exceeded his jurisdiction. The ratio of the decision is that an appellate court exercising powers in an appeal against an interlocutory order cannot determine the ultimate fate of the main suit, which remains pending before the trial court. The court clarified that the appellate court's authority is limited to upholding, vacating, or modifying the specific order under appeal. Consequently, the High Court set aside the dismissal order and directed the trial court to proceed with the suit in accordance with law.
- Can an appellate court hearing an appeal against a temporary injunction dismiss the main suit?
- Does an appellate court have the authority to decide the merits of a suit when only an interlocutory order is under challenge?
- What is the scope of an appellate court's power under Order XLI, Rule 33 of the Code of Civil Procedure 1908 in an appeal against a temporary injunction?
- Order XLI Rule 33, Code of Civil Procedure 1908
' The facts giving rise to this civil revision are that the petitioner, Shandev, filed a suit against the respondents, Lehri Khan and others, for a declaration with consequential relief. He also prayed for a temporary injunction which was allowed by a Civil Judge of Kasur. His order in this behalf was challenged by respondents Nos. 2 and 3. Mst. Zahur Bibi and another, by taking an appeal to the District Judge, Kasur. The learned Dirtrict Judge vacated the temporary injunction and also dismissed the suit holding that it was barred by res judicata. Feeling aggrieved by the order of the learned District Judge, the petitioner has come up in revision to this Court.
2. It was contended by learned counsel for the petitioner that since the main suit was not before the learned District Judge, it could not be dismissed by him. According to him, the learned District Judge could merely uphold or vacate the temporary injunction granted by the trial Court but conid not make any order in regard to the main suit.
3. On the contrary, it was urged by learned counsel for the respondents that the learned District Judge had all the powers which were available to the learned trial Court and, therefore, his order relating to the dismissal of the suit was unexceptionable. In this connection, reliance was placed by him on Order XLI, rule 33 of the Code of Civil Procedure.
4. As explained above, the appeal before the learned District Judge was not against the judgment and decree passed in the suit nor the suit itself was being tried by him as a Court of original jurisdiction. He could not, therefore, make any order determining the ultimate fate of the suit. In the appeal before him, he was called upon to simply examine the correctness or otherwise of the order of the learned trial Court by which temporary relief was allowed to the petitioner. What the provisions of Order XLI, rule 33 of th A Code of Civil Procedure empowered him to do was to uphold, vacate or modify the said order or give any direction in relation thereto but he could not dismiss the suit which was yet to be heard and decided by the learned trial Court. The order of dismissal of the suit was beyond the scope of th appeal taken to the learned District Judge and in making that order he had over-stepped his jurisdiction for which there is no warrant in law.
5. In this view of the matter, I accept this civil revision, set aside the order of the learned District Judge relating to the dismissal of the suit and direct that the suit shall be heard and decided by the learned Civil Judge in accordance with law.
6. The parties shall appear before the learned Civil Judge on 2nd November, 1982. There shall be no order as to costs.
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