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TMI Blog1979 (2) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... ltivation of the suit lands. It appears that the applicants had also prayed for temporary injunction in the suit and an ex parte injunction was granted. However, it was vacated after the defendants appeared in the suit and contested it. An appeal was preferred against the vacation of the stay but that appeal was also dismissed. In that suit the applicants claimed that one Haribhau who was the husband of applicant No. 1 and father of applicants Nos. 2 and 4 had been cultivating suit lands as tenant for the last 10 to 12 years till his death and that after his death, the applicants had become tenants in respect of the suit lands as heirs of Haribhau and were as such cultivating them. They alleged that non-applicant No. 1 was interfering with their possession and was trying to oust them. It is on these allegations that they sought the temporary and permanent injunctions. It appears that non-applicant No. 1 appeared in that suit and denied the claim of the applicants to be the tenants of the suit land and on this contention an issue was raised as to whether the applicants were tenants of the suit lands. This issue regarding tenancy had been referred to the competent authority under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the previously instituted suit namely Regular Civil Suit No. 105 of 1972 and both the suits are between the same parties and hence the trial Court ought to have stayed Regular Civil Suit No. 167 of 1972 under the provisions of Section 10 of the Code of Civil Procedure (hereinafter referred to as the Code ). According to Mr. Kherdekar, if the trial Court had proceeded to stay the suit under Section 10 of the Code, it could not have passed any interim order including the order for temporary injunction. Mr. Kherdekar secondly 'submitted that the suit involved the determination of the question of tenancy of agricultural land and hence the Civil Court was bound to stay the suit under the provisions of Section 125 of the Act and hence also it would not be competent for it to pass any orders, including interim orders, when the suit is required to be stayed under the provisions of the said Act. Mr. Kherdekar submitted that the issue regarding tenancy has already been referred to the competent Court in Civil Suit No. 105 of 1972 and hence the trial Court should not have granted any temporary injunction in favour of non-applicant No. 1 in Civil Suit No. 167 of 1972 inasmuch as it wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not competent to pass any order on that application. It also appears that such contention was not even taken before the appellate Court and it is being taken for the first time in this revision application in this Court. However, this is a question of law and I do not propose to stop the applicants from raising that question here. 8. As already noted above, Mr. Kherdekar contended that the matter in issue in both the suits is substantially the same and that issue is whether the applicants are tenants of the suit lands. According to Mr. Kherdekar, if this is so, the provision's of Section 10 of the Code would clearly govern the latter suit namely Civil Suit No. 167 of 1972 and the provisions of that section being mandatory as laid down by the Supreme Court in Manoharlal v. Hiralal AIR1962SC527 , the trial Court had no other alternative but to stay the suit and if it had to stay the suit it could not entertain any interim application like the application for temporary injunction. Mr. Kherdekar further submitted that even though Section 10 speaks of stay with regard to trial of the suit, the trial of the suit commenced as soon as the plaint is instituted and henc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difficulty in holding that the trial Court has to stay the trial of the suit which is governed by the provisions of that section. However, it may be noted that what is prohibited is proceeding with the trial of the suit. The word trial has not been defined in the Code and that word occurring in Section 10 will have to be construed in the light of scheme of the Code itself. As has been observed by the Supreme Court in Harish Chandra's case the word trial standing by itself is susceptible of both the narrow and wider senses i.e. it may be understood in the limited sense as meaning the final hearing of the matter consisting of examination of witnesses, filing documents and addressing arguments or it may connote entire proceedings before the tribunal from the time that the matter is instituted until the pronouncement of the decision. The case before the Supreme Court was under the Representation of the People Act of 1951 and, there the Court was called upon to construe the word trial occurring in Section 90 of that Act. Considering the scheme of the Act the Supreme Court held that the word there was used in a wider sense. It would, therefore, appear that the word trial can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emporary injunction against his possession would be deprived of that remedy as such a remedy is not available to him before the authorities under the Act as has been held by this Court in Mela Kabhai v. Motibai (1958)60BOMLR1071 ). Further Mr. Sohoni submitted that in deciding the application for temporary injunction the Civil Court is not concerned with the decision regarding the right, title and interest of the parties to the suit in the subject matter of the suit. The Civil Court is concerned in granting temporary injunction only with the question as to which party is prima facie in possession at the time of the institution of the suit. There may be dispute between the parties with regard to the title of the suit property and the parties may set up their own claim to the property in various ways which would be decided in the suit. Mr. Sohoni therefore, submitted that the trial Court in this case was not prevented from granting temporary injunction simply because the applicants had contended that they were tenants of the suit land and issue regarding tenancy had to be referred to the competent authority under the Act and the suit had to be stayed. Sub-section (1) of Section 125 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interim order unless that issue is determined by the competent authority. 13. In granting temporary injunction for restraining one party to the suit from interfering with the possession of the other party, the Civil Court is primarily concerned not so much with the question as regards title of the property or the capacity in which the person claiming to be in possession is holding the property, as with the question as to who is in possession of the suit property at the time of the institution of the suit and this decision has to be arrived at on the basis of evidence which would be adduced in that connection. But, it would only be a tentative and provisional finding, which would be subject to the final decision of the issues in the case, Now, in such an application the question whether the plaintiff or the person who applies for the temporary injunction and claims to be in possession of the suit property is in occupation thereof as a tenant or in his own rights is not material. What the Court has to consider is whether such a person is in actual possession of the suit property and having regard to the balance of convenience and other factors, it is necessary to protec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the finding of fact and the appreciation of evidence. I therefore, do not find any substance in the contention of Mr. Kherdekar that on facts the decision of the appellate Court is not correct, 15. There is, however, much substance in the last contention urged by Mr. Kherdekar. In the plaint itself, non-applicant No. 1 admitted that the applicants were residing in the cattle shed in the field. Averment to the same effect has been made in the application for temporary injunction also. It would thus appear that all along it has been the case of non-applicant No. 1 that though the applicants were not in possession of the suit lands, they were occupying the cattle shed situated therein. It was because of this that while granting the ex parte temporary Injunction, the trial Court had to put the condition that non-applicant No. 1 would not oust applicant No. 1 from the residential hut in which she was residing. However, at the time of confirming the temporary ex parte injunction, the trial Court deleted the condition that non-applicant No. 1 would not oust applicant No. 1 from the residential hut, in which she was residing. The trial Court observed that it would not be prop ..... X X X X Extracts X X X X X X X X Extracts X X X X
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