In this petition filed under Article 227 of the Constitution, the petitioner has challenged the order dated 04.04.2014 (AnnexureP/7) passed by the IV th Additional District Judge, Sagar in Misc. Civil Appeal No.11/2014.

The respondents/plaintiffs filed a civil suit for declaration and permanent injunction. Along with the suit, an application under Order 39 Rule 1 & 2 of Civil Procedure Code was filed. The present petitioners/defendants filed an application under Order 7 Rule 11 of Code of Civil Procedure dated 21.12.2012 (Annexure-P/5). The trial Court decided the application under Order 39 Rule 1 & 2 of CPC by order dated 03.03.2014. The injunction application of the plaintiffs was rejected. The plaintiffs feeling aggrieved with the said order preferred an miscellaneous appeal before the Court below. By the impugned order the said miscellaneous appeal was allowed and defendant Nos.3 & 4 were restrained from interfering into the possession of the plaintiffs till decision of civil suit or till partition takes place.

Shri Amit Sharma criticized the order by contending that when the application under Order 7 Rule 11 of CPC was pending, the trial Court should have decided the said application before taking up and deciding injunction application. Unless the application under Order 7 Rule 11 of CPC is decided, it cannot be said that the civil suit is maintainable and plaintiffs have a prima facie case. Shri Sharma specifically contended that the said application Annexure- P/5 is still pending before the trial Court. He urged that the appellate Court has committed an error in granting injunction without appreciating that the petitioners application under Order 7 Rule 11 of CPC is pending. On merits also, it is urged that the findings given by the appellate Court are bad in law.

Prayer is opposed by Shri R.P. Khare, learned counsel for the respondents. He submits that there is no legal bar in deciding the injunction application or miscellaneous appeal without deciding the application preferred under Order 7 Rule 11 of CPC. He supported the impugned order. No other point is pressed by the learned counsel for the parties.

I have heard learned counsel for the parties at length and perused the record.

The application/objection filed under Order 7 Rule 11 of CPC goes to the root of the matter. Order 7 Rule 11 of CPC makes it clear that if objections filed under this provisions are sustained, the plaintiffs will be non-suited. In other words, the objections raised under Order 7 Rule 11 of CPC goes to the root of the matter and covers the aspect of maintainability, jurisdiction, cause of action etc. This is also settled in law that a temporary injunction can be granted if prima facie case is made out, balance of convenience is in favour of the plaintiffs and non-grant of injunction may result into irreparable loss to the plaintiffs. Thus the availability of a strong prima facie case is a condition precedent for grant of injunction. In my view, before granting injunction, the Court must consider the existence of a prima facie case which includes the jurisdiction of the Court. There cannot be a prima facie case if the Court deciding the same has no jurisdiction to entertain the suit. Thus, the Court must bear in mind that injunction can be granted only when it has jurisdiction to entertain the suit. Only thereafter, it should proceed to pass an order regarding injunction.

I find support in my view from the judgment passed by Division Bench of this Court in Vindhya Telelinks Ltd. Vs. State Bank of India, Rewa and others, 1995 MPLJ 575. Considering the aforesaid, I find force in the argument of Shri Amit Sharma that before granting injunction, the appellate Court should have considered this aspect. Considering the aforesaid, I am unable to countenance the order of the appellate Court whereby the injunction has been granted in favour of the plaintiffs without deciding the questions raised in the application preferred under Order 7 Rule 11 of the CPC.

Resultantly, the order dated 04.04.2014 (Annexure-P/7) is set aside. It is made clear that this order will not come in the way of the Courts below to decide the application for injunction after taking a decision on the application under Order 7 Rule 11 of CPC. Petition is allowed.