R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.36727/2017(GM-CPC) BETWEEN:
SMT. JABEENA HUSSAINI, D/O LATE GULAM HUSSIAN, W/O MOHAMMED RAFIQ, REPRESENTED BY HER POWER OF ATTORNEY HOLDER, SRI.MOHAMMED RAFIQ, AGED ABOUT 53 YEARS, PROPRIETRIX, UNITED TRADING CO. SHOP NO.93, A-BLOCK, 3RD CROSS, BANDIPALYA, MYSURU.
... PETITIONER (BY SRI SHIVARAMA BHAT O., ADVOCATE) AND:
SRI RAJENDRA KUMAR P., AGED ABOUT 47 YEARS, GENERAL MANAGER, M/S.NANDI(NANDINI)ROLLER FLOOR, MILLES PRIVATE LIMITED, NO.16/B, 17-A, BELAGOLA INDUSTRIAL AREA, K.R.S.ROAD, MYSURU.
... RESPONDENT (BY SRI B. C. GURU, ADVOCATE FOR C/R) **** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 8.8.2017 PASSED ON I.A.NO.2 IN M.A.NO.16/2017 ON THE FILE OF THE IV ADDITIONAL DISTRICT JUDGE, MYSORE, VIDE ANNEXURE-A ETC., THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner - plaintiff filed the present writ petition against the order dated 8.8.2017 on I.A. No.2 made in M.A. No.16/2017 on the file of the IV Addl. District Judge, Mysuru rejecting the application filed by the petitioner – plaintiff under the provisions of Section 141 r/w Section 151 of Code of Civil Procedure.
2. The petitioner who is the plaintiff in the trial Court had filed O.S. No.1049/2012 for Permanent Injunction against the respondent - defendant, contending that he is the owner in possession of the suit schedule property morefully described in the plaint and the defendant has no manner of right, title and interest to interfere with the same. The defendant filed the written statement and denied the plaint averments and contended that the suit filed by the plaintiff for Permanent Injunction is not maintainable etc., 3. On the basis of the pleadings, the trial Court framed four issues for consideration.
4. In order to establish her case, the plaintiff examined her General Power of Attorney holder – Mohammed Rafiq as PW.1 and got marked the documents Ex.P1 to Ex.P32. The defendant examined himself as DW.1 and got marked the documents Ex.D1 to Ex.D11.
5. The trial Court considering the entire material on record by the Judgment & Decree dated 7.2.2017 dismissed the suit.
6. Aggrieved by the said Judgment & Decree, the petitioner – plaintiff filed R.A. No.36/2017 before the Prl. Senior Civil Judge & CJM, Mysuru. Along with the said appeal, the petitioner - plaintiff also filed an application under Order XXXIX Rules 1 and 2 r/w Section 151 of Code of Civil Procedure and sought for an ad-interim order of Temporary Injunction. The respondent - defendant filed objections to the said application. The Prl. Senior Civil Judge & CJM, Mysuru after hearing both the parties by an order dated 13.4.2017 allowed I.A. No.1 filed by the petitioner – plaintiff and granted the order of Temporary Injunction.
7. Aggrieved by the said order passed by the Prl.
Senior Civil Judge & CJM, Mysuru, the respondent – defendant filed M.A. No.16/2017 under Order XLIII Rule 1 of Code of Civil Procedure before the District Judge, Mysuru. When the appeal was pending before the District Judge, the petitioner – plaintiff filed an application under the provisions of Section 141 r/w Section 151 of Code of Civil Procedure to dismiss the appeal as not maintainable, contending that the trial Court dismissed the suit holding that she is in physical possession of the property wherein she is carrying on the business; Against the said Judgment & Decree, the appeal came to be filed and in the appeal, Temporary Injunction was granted in her favour; Against the order of granting Temporary Injunction, M.A. No.16/2017 came to be filed by the respondent – defendant before the District Court under Order XLIII Rule 1(r) of Code of Civil Procedure; Since no miscellaneous appeal would lie from the order of the appellate Court passed on the application filed under Order XXXIX Rules 1 and 2 of Code of Civil Procedure under the provisions of Order XLIII Rule 1(r) of Code of Civil Procedure, M.A. No.16/2017 is not maintainable and therefore sought to dismiss the said appeal as not maintainable. The same was opposed by the present respondent – defendant contending that the value of the suit schedule property was less than Rs.5,00,000/-; Therefore the plaintiff filed the suit before the II Addl. First Civil Judge, Mysuru; After dismissal of the suit, plaintiff filed R.A. No.36/2017 before the Prl. Senior Civil Judge & CJM, who granted Temporary Injunction for the first time in favour of the plaintiff. Therefore appeal was maintainable before the District Judge under Order XLIII Rule 1 of Code of Civil Procedure. Hence he sought to dismiss the application.
8. The learned District Judge, Mysuru considering the application filed by the petitioner - plaintiff under Section 141 r/w Section 151 of Code of Civil Procedure and the objections filed by the respondent - defendant by the impugned order dated 8.8.2017 rejected the application holding that the appeal is maintainable before the District Court. Hence, the present writ petition is filed.
9. I have heard the learned counsel for the parties to the lis.
10. Sri Shivaram Bhat, learned counsel for the petitioner - plaintiff contended that as against the order passed by the appellate Court exercising the powers under Order XXXIX Rules 1 and 2 of Code of Civil Procedure, the appeal before the District Court under Order XLIII Rule 1 was not maintainable. He would further contend that the only remedy available to the aggrieved party is to file appeal before this Court under the provisions of Section 106 of Code of Civil Procedure. Hence the appeal filed before the District Court Order XLIII Rule 1 was not maintainable. In support of his contentions, he has relied upon the following judgments:
1. AIR 1975 Mad. 3 (C. KALAHASTI .vs. P.C.
MUNISWAMI CHETTI) (paragraph-8) 2. (1974)2 SCC 393 ( SMT. GANGA BAI .vs. VIJAY KUMAR AND OTHERS) (paragraph-16) 3. AIR 1964 Kerala 23 (CHELLAPPAN s/o PATHIRAMANNEL KRISHNAN AND ANOTHER .vs. K.P. VARUGHESE AND ANOTEHR) (Paragraph-3) 11. Per contra, Sri B.C. Guru, learned counsel for the caveator/respondent - defendant sought to justify the impugned order and contended that the value of the subject matter of the suit was less than Rs.5,00,000/- and therefore the plaintiff filed the suit before the II Addl. First Civil Judge and the suit came to be dismissed; Being aggrieved, the petitioner - plaintiff filed Regular Appeal No.36/2017 before the Prl. Senior Civil Judge, Mysuru under Section 96 of Code of Civil Procedure. He would further contend that aggrieved by the interim order passed by the Prl. Senior Civil Judge, Mysuru, the respondent -
defendant filed appeal under Order XLIII Rule 1(r) of Code of Civil Procedure before the District Court, which was maintainable in view of the provisions of Section 104 of Code of Civil Procedure. Therefore he sought to dismiss the writ petition. In support of his contentions, learned advocate for the respondent has relied upon the judgment of the co-ordinate Bench in the case of SRI MADHAVA PRABHU .vs. SRI SUBHAS SHETTY made in MFA No.292/2016 decided on 2.2.2016 wherein this Court in identical circumstances held that against an order passed on I.A. by the Senior Civil Judge, appeal lies under Order XLIII Rule 1(r) of Code of Civil Procedure.
12. The learned counsel for the respondent – defendant further invited the attention of the Court to the decision in the case of SHIVAPPA .vs. BASAVARAJ reported in ILR 2008 KAR 601 wherein this Court in identical circumstances observed as under:
“9. An order passed by the appellate court (Civil Judge) (Senior Division), in R.A. NO.55/06 (filed under Section 96 read with Order 41 Rule 1 of CPC) on an interlocutory application filed under Order 39 Rule 1 & 2 of CPC, in an appeal, shall not be construed as original order. The learned District Judge failed to note that the impugned order challenged in the Miscellaneous Appeal was an order made on an application filed under Order 39 Rules 1 and 2 of CPC, granting temporary injunction in favour of the plaintiff and against the defendant, and the same is appealable under Section 104(1) r/w Order 43 1(r) of CPC. The learned District Judge has committed an error in dismissing the appeal.”
13. In view of the rival contentions urged by the learned counsel for the parties, the points that arise for consideration are:
(1) Whether M.A.No.16/2017 filed against the order dated 13.04.2017 passed on I.A.No.1 made in R.A.No.36/2017 granting temporary injunction was maintainable before the District Judge under the provisions of Section 104(1) r/w Order 43 Rule 1(r) of Code of Civil Procedure?
(2) Whether the impugned order passed by the IV Additional District Judge rejecting the application filed by the present petitioner under Section 141 r/w Section 151 of CPC calls for any interference?
14. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material available on record, carefully.
15. It is not in dispute that the present petitioner who is the plaintiff in O.S.No.1049/2012 filed suit for permanent injunction against the defendant/respondent in respect of the suit schedule property, morefully described in the schedule contending that he is the owner in possession of the suit schedule property in terms of the allotment made by the APMC, Mysuru, and the defendant/ respondent has no manner of right to interfere with the plaintiff’s peaceful possession and enjoyment of the suit schedule property. The defendant/respondent filed written statement contending that the suit filed by the plaintiff/ petitioner for permanent injunction is not maintainable and further contended that on the northern side of the suit schedule property one M/s Nandi Roller exclusively belongs to the defendant. The same was allotted by the APMC which had a valid licence to put up construction and the defendant/ respondent is only a Manager in the said Company. Therefore, the original suit filed by the plaintiff was not maintainable.
16. It is also not in dispute that in order to establish her case, petitioner/ plaintiff examined her power of attorney holder-Sri Mohd. Rafiq as P.W.1 and marked documents Exs.P.1 to P.32. The defendant/respondent examined himself as D.W.1 and marked documents Exs.D.1 to D.11. The Trial Court, considering the entire oral and documentary evidence on record, by judgment and decree dated 07.02.2017 dismissed the suit holding that the plaintiff/petitioner has not proved that he is in possession of the suit schedule property as on the date of the suit.
17. It is an admitted fact that against the judgment and decree passed by the Trial Court, the present petitioner filed Regular Appeal under Section 96 of the Code of Civil Procedure in R.A.No.36/2017 before the Prl. Civil Judge (Sr.Dn.) and CJM, Mysuru. Along with the said appeal, the petitioner/plaintiff filed an application under Order XXXIX Rule 1 and 2 r/w Section 151 of Code of Civil Procedure, for grant of temporary injunction. The Lower Appellate Court, considering the application and objections, granted injunction on 13.04.2017 in favour of the petitioner/plaintiff.
18. It is also not in dispute that aggrieved by the said order, the defendant filed an appeal in M.A.No.16/2017 under Order 43 Rule 1 of Code of Civil Procedure, before the District Judge, Mysuru. During pendency of the Appeal before the District Judge, the present petitioner filed an application under Section 141 r/w Section 151 of Code of Civil Procedure to dismiss the appeal as not maintainable. The lower Appellate Court, considering the application and objections, by the impugned order dismissed the application filed by the present petitioner.
19. It is not in dispute that the petitioner/plaintiff filed original suit before the Civil Judge (Jr.Dn.), Mysuru, for permanent injunction on the ground that the value of the suit schedule property is less than five lakhs. After contest, the suit came to be dismissed on 07.02.2017. It is also not in dispute that aggrieved by the said judgment and decree, the present petitioner/plaintiff, filed R.A.No.36/2017 before the Prl. Civil Judge (Sr.Dn.) and CJM, Mysuru, who granted injunction on 13.04.2017 on the application filed by the petitioner under Order XXXIX Rule 1 and 2 of Code of Civil Procedure. Therefore, the present respondent-defendant filed M.A. No.16/2017 against the order dated 13.04.2017 on I.A.No.1 granting temporary injunction in favour of petitioner/plaintiff by the Prl. Senior Civil Judge and CJM, Mysuru, under Order 43 Rule 1 of Code of Civil Procedure. When the market value of the suit schedule property was not in dispute, against dismissal of the suit for injunction, an appeal was filed before the Senior Civil Judge, Mysuru, by the petitioner-plaintiff and during pendency of the appeal, the Civil Judge (Sr.Dn.) granted injunction for the first time. Against the said order, an appeal came to be filed by the respondent/defendant under Order 43 Rule 1(r) of Code of Civil Procedure. Section 104 of Code of Civil Procedure will not be a bar to an appeal filed under Order 43 Rule 1(r) of Code of Civil Procedure against the order passed in exercise of power under Order XXXIX Rule 1 and 2 of Code of Civil Procedure, if it is not an appeal presented under Section 104 of Code of Civil Procedure.
20. Admittedly, in the present case, the interlocutory order of temporary injunction came to be passed under Order XXXIX Rule 1 and 2 of Code of Civil Procedure in a Regular Appeal presented under Section 96 of Code of Civil Procedure and not in an appeal presented under Section 104 of Code of Civil Procedure. Therefore, appeal is not barred under Section 104(2) of Code of Civil Procedure.
21. The provisions of Section 104 has to be read as a whole. Merely reading sub clause (2) by ignoring the saving clause in sub Section (1) would lead to a conflict between two sub clauses. Read as a whole and on well established principles of interpretation, it is clear that sub clause (2) can only apply to appeals not saved by sub clause (1) of Section 104 of Code of Civil Procedure. The finality provided by sub clause (2) only attaches to orders passed in appeal under Section 104 i.e., for those orders against which an appeal under “any other law for the time being in force” is not permitted, Section 104(2) would not thus bar a Letters Patent Appeal.
22. The Hon’ble Supreme Court, while considering the provisions of Sections 104(2) & (1) and 4 and 100-A (prior to 1976, 2002 amendment) Order 43 Rule 1-Letters Patent, Clause 15 (Madras)- Letters Patent Appeal - in the case of P.S.Sathappan (dead) by legal representatives vs. Andhra Bank Limited and others reported in AIR 2004 SC 5152 at para 29, 30 and 31 held as under:
29. Thus, the consensus of judicial opinion has been that Section 104(1) Civil Procedure Code expressly saves a Letters Patent Appeal. At this stage it would be appropriate to analyze Section 104 C.P.C. Sub-section (1) of Section 104 CPC provides for an appeal from the orders enumerated under sub-section (1) which contemplates an appeal from the orders enumerated therein, as also appeals expressly provided in the body of the Code or by any law for the time being in force. Sub-section (1) therefore contemplates three types of orders from which appeals are provided namely, 1) orders enumerated in sub-section (1).
2) appeals otherwise expressly provided in the body of the Code and 3) appeals provided by any law for the time being force. It is not disputed that an appeal provided under the Letters Patent of the High Court is an appeal provided by a law for the time being in force.
30. As such an appeal is expressly saved by Section 104(1). Sub-clause 2 cannot apply to such an appeal. Section 104 has to be read as a whole. Merely reading sub-clause (2) by ignoring the saving clause in sub-section (1) would lead to a conflict between the two sub-clauses. Read as a whole and on well established principles of interpretation it is clear that sub-clause (2) can only apply to appeals not saved by sub-clause (1) of Section 104. The finality provided by sub-clause (2) only attaches to Orders passed in Appeal under Section 104, i.e., those Orders against which an Appeal under "any other law for the time being in force" is not permitted. Section 104(2) would not thus bar a Letters Patent Appeal. Effect must also be given to Legislative intent of introducing Section 4 C.P.C. and the words "by any law for the time being in force" in Section 104(1). This was done to give effect to the Calcutta, Madras and Bombay views that Section 104 did not bar a Letters Patent. As Appeals under "any other law for the time being in force" undeniably include a Letters Patent Appeal, such appeals are now specifically saved. Section 104 must be read as a whole and harmoniously. If the intention was to exclude what is specifically saved in sub-clause (1), then there had to be a specific exclusion. A general exclusion of this nature would not be sufficient. We are not saying that a general exclusion would never oust a Letters Patent Appeal. However when Section 104(1) specifically saves a Letters Patent Appeal then the only way such an appeal could be excluded is by express mention in 104(2) that a Letters Patent Appeal is also prohibited. It is for this reason that Section 4 of the Civil Procedure Code provides as follows:
"4. Savings.- (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.
(2) In particular and without prejudice to the generality of the proposition contained in sub- section (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land."
As stated hereinabove, a specific exclusion may be clear from the words of a statue even though no specific reference is made to Letters Patent. But where there is an express saving in the statute/section itself, then general words to the effect that "an appeal would not lie" or "Order will be final" are not sufficient. In such cases, i.e., where there is an express saving, there must be an express exclusion. Sub-clause (2) of Section 104 does not provide for any express exclusion. In this context reference may be made to Section 100A. The present Section 100A was amended in 2002. The earlier Section 100A, introduced in 1976, reads as follows:
"100A. No further appeal in certain cases.- Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such single Judge in such appeal or from any decree passed in such appeal."
It is thus to be seen that when the Legislature wanted to exclude a Letters Patent Appeal it specifically did so. The words used in Section 100A are not by way of abundant caution. By the Amendment Acts of 1976 and 2002 a specific exclusion is provided as the Legislature knew that in the absence of such words a Letters Patent Appeal would not be barred. The Legislature was aware that it had incorporated the saving clause in Section 104(1) and incorporated Section 4 in the C.P.C. Thus now a specific exclusion was provided. After 2002, Section 100A reads as follows:
"100A. No further appeal in certain cases.- Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge."
To be noted that here again the Legislature has provided for a specific exclusion. It must be stated that now by virtue of Section 100A no Letters Patent Appeal would be maintainable. However, it is an admitted position that the law which would prevail would be the law at the relevant time. At the relevant time neither Section 100A nor Section 104(2) barred a Letters Patent Appeal.
31. Applying the above principle to the facts of this case, the appeal under Clause 15 of the Letters Patent is an appeal provided by a law for the time being in force. Therefore, the finality contemplated by Sub-section (2) of Section 104 did not attach to an Appeal passed under such law.”
23. Considering the provisions of Sections 104(2) & (1), 96, 106 and under Order 43 Rule 1, the Allahabad High Court in the case of Mohd. Tahir Khan vs. Mohd. Yunus Khan, reported in AIR 2006 (NOC) 1393 (All), held that appeal from the appeallate order-maintainability-pendency of Regular Appeal under Section 96-Appellate Court passing order during pendency of the nature mentioned in any of the clause (a) to (w) of Order 43 Rule 1 then an appeal against such order would lie under Section 104(1) r/w Order 43 Rule 1 of Code of Civil Procedure in view of provisions of Section 106 of Code of Civil Procedure.
24. Considering the provisions of Section 104 (1) and (2) Order XXXIX Rules 1 and 2 and Order XLIII Rule 1(r) of the Code of Civil Procedure, the Andhra Pradesh High Court in the case of K. Gangulappa Naidu –vs- Gangi Naidu reported in AIR 1982 AP 284 at paragraph-14 has held as under:
“Thus, it is quite evident that in a regular appeal pending before the appellate Court if an order is passed under O. XXXIX, Rr. 1 and 2, or as a matter of fact under any of the orders, then the appeal is maintainable under O. XLIII, R. 1, C. P. C., as all such orders are appealable under O.XLIII”.
25. A Co-ordinate Bench of this Court considering the provisions of Order XLIII Rule 1(r) r/w Section 106 of the Code of Civil Procedure in the case of Sri Madhava Prabhu –vs- Sri Subhas Shetty and Another reported in ILR 2016 Kar 2086 at paragraphs-3 and 4 has held as under:
“3. In my opinion, Section 104(2) of CPC will not bar an appeal under Order 43 Rule 1(r) of CPC against an order passed in exercise of the power under Order 39 Rules 1 & 2 of CPC, if it is not passed in an appeal presented under Section 104 of CPC.
4. It is relevant to state that the interlocutory order impugned in this appeal is an order passed in exercise of the power under Order 39 Rules 1 & 2 of CPC in a Regular appeal presented under Section 96 of CPC and not in an appeal presented under Section 104 of CPC. Hence, this appeal is not barred under Section 104(2) of CPC. ”
26. Another Co-ordinate Bench of this Court in the case of Shivappa –vs- Basavaraj reported in ILR 2008 Kar 601 at paragraphs-9 and 10 has held as under:
“9. An order passed by the appellate court (Civil Judge) (senior Division), in R.A.No. 55/06 (filed under Section 96 read with Order 41 Rule 1 of CPC) on an interlocutory application filed under Order 39 Rule 1 & 2 of CPC, in an appeal, shall not be construed as original order. The learned District Judge failed to note that the impugned order challenged in the Miscellaneous Appeal was an order made on an application filed under Order 39 Rules 1 and 2 of CPC, granting temporary injunction in favour of the plaintiff and against the defendant, and the same is appealable under Section 104(1) r/w Order 43 1(r) of CPC. The learned District Judge has committed an error in dismissing the appeal.
10. In the result, the writ petition is allowed and the impugned order dated 1.8.2007 made in M.A.No. 4/07, at Annexure-"E" is hereby quashed and the matter is remitted back to the District Court for disposal of the miscellaneous Appeal in accordance with law.”
27. With regard to the contention of the learned Counsel for the petitioner-plaintiff that, MA No.16/2017 filed against the order passed by the Lower Appellate Court granting temporary injunction was not maintainable in view of the dictum of the Hon’ble Supreme Court in the case of Smt. Ganga Bai –vs- Vijay Kumar reported in (1974)2 SCC 393, the same cannot be accepted for the simple reason that, in the judgment relied upon by the learned Counsel for the petitioner-plaintiff stated supra it has been held that under the provisions of Section 96 of the Code of Civil Procedure, an appeal lies from every decree passed by any court exercising original jurisdiction, to the Court authorized to hear appeals from the decisions of such court. Section 100 of the Code of Civil Procedure provides for a second appeal to the High Court from an appellate decree passed by a court subordinate to the High Court. Sub-Section (1) of Section 104 provides for appeals against the orders of the kind therein mentioned and ordains that save as otherwise expressly provided by the Code or by any law for the time being in force an appeal shall lie ‘from no other orders’. Clause (i) of this section provides for an appeal against ‘any orders made under Rules from which an appeal is expressly allowed by rules’. There is no quarrel with regard to the law declared by the Hon’ble Supreme Court in the facts and circumstances of that case, but the same is not squarely applicable to the facts and circumstances of the present case.
28. In another judgment relied upon by the learned Counsel for the petitioner-plaintiff in the case of Chellappan and Another –vs- K.P. Varughese and another reported in AIR 1964 Kerala 23 wherein an appeal was preferred under the provisions of Sections 104(2), 107 and 115 of the Code of Civil Procedure to the District Court from the interlocutory order made by the trial Court in suit, an application was made in appeal praying for interlocutory order which was dismissed and against the nature of such dismissal order, an appeal was preferred to the High Court which was also dismissed as barred under Section 104(2) of the Code of Civil Procedure.
29. Admittedly in the present case, the suit filed by the petitioner-plaintiff came to be dismissed against which she preferred regular appeal under Section 96 of the Code of Civil Procedure before the Principal Civil Judge (Sr.Dn.) and CJM, Mysuru. In the said appeal an injunction was granted exercising the powers under Order 39 Rules 1 and 2 of the Code of Civil Procedure. Therefore, an appeal came to be filed by the respondent-defendant before the District Court, Mysuru under Order XLIII Rule 1(r) r/w Section 151 of the Code of Civil Procedure which was maintainable, since the market value of the suit schedule property was less than Rupees Five Lakhs. In that view of the matter, the judgment relied upon by the learned Counsel for the petitioner is not squarely applicable to the facts and circumstances of the present case.
30. The learned Counsel for the petitioner also relied upon the judgment of the Madras High Court in the case of C. Kalahasti –vs- P.C. Munuswami Chetti reported in AIR 1975 Madras 3 wherein a reference was made under Section 104 in Order XLII Rule 1 of the Code of Civil Procedure and it was held that right of appeal given against the orders enumerated in Order 43 Rule 1 will be subject to stipulation contained in Section 104(2). Moreover, because of the use of the words ‘original or appellate jurisdiction’ in Section 105. the Court can only exercise either original or appellate jurisdiction but not both at one and the same time. The facts and circumstances of the said case and the facts and circumstances of the present case are entirely different and not applicable to the present case on hand.
31. In view of the provisions of Section 104(1) r/w Order XLIII Rule 1 of the Code of Civil Procedure and the law declared by the Hon’ble Supreme Court, this Court and other High Courts as stated supra, the first point raised in the present writ petition is answered in the affirmative holding that the M.A. No.16/2017 filed against the order dated 13.4.2017 passed on I.A.No.1 made in R.A. No.36/2017 granting temporary injunction was maintainable before the District Judge under the provisions of Section 104(1) r/w Order 43 Rule 1(r) of Code of Civil Procedure.
32. The District Court considering the provisions of Section 96, Order XLIII Rule 1(r) r/w Section 106 and the law declared by the Coordinate Bench of this Court in the case of Sri Madhava Prabhu stated supra, has held that the appeal filed by the respondent-defendant against the interlocutory order passed in RA No.36/2017 granting temporary injunction was maintainable and hence, rejected the application. The same is in accordance with law. In view of the same, point No.2 raised in the present writ petition is answered in the negative holding that the IV Additional District Judge, Mysuru was justified in rejecting the application filed by the present petitioner under Section 141 r/w 151 of the Code of Civil Procedure. Therefore the petitioner-plaintiff has not made out any ground to interfere with the impugned order passed by the trial Court in exercise of powers under Article 227 of the Constitution of India.
Accordingly, writ petition is dismissed.
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