Principles

·  Civil Procedure—Injunction—Temporary—” Suit” must have begun—Civil Justice Ordinance, 1929, s, 142—Only after complaint is allowed

A temporary injunction under Civil Justice Ordinance, 1929, s. 142, may not be ordered until there is “a Suit” which commences after the action is allowed after examination of the complaint under Civil Justice Ordinance, 1929, s. 56.

Judgment

      Advocates: Shawgi Mallasi………. for defendant applicant

      Kamal Bassyoni………. for plaintiff-respondent

      M. A. Abu Rannat C.J. March 24, 1964:—On December 12, 1963, the respondent submitted a petition to the court praying for a perpetual injunction restraining the applicant from undertaking or carrying out any work in respondent’s house. On the same day an application for temporary injunction was made by the respondent for the same purpose.

      The petition which is in effect the plaint was not considered by the judge and no action was in fact allowed, nor court fees were paid.

      The application for the temporary injunction was considered by the Province Judge, who granted the respondent the order prayed for. This order was made under Civil Justice Ordinance, 1929, s. 142.

      Applicant applied for revision of the above order. He contends that no suit was instituted and therefore the order was bad in law. Respondent replied that as Civil Justice Ordinance, s. 54, laid down that every suit shall be instituted by the presentation of plaint, and that their original petition

complies with the requirements of Civil Justice Ordinance, s. 55, which sets out the particulars which should be contained in a plaint, the order made by the Province Judge was correct; since in his submission plaint means a suit.

      In my opinion this application should be allowed and the order of the Province Judge be set aside. A suit means civil proceedings instituted by a plaint while a plaint is a petition tendered to a court in which a person sets forth his cause of action. Until an examination of the plaint under Civil Justice Ordinance, s. 56, an action allowed by plaint cannot be called a suit, as it may be rejected.

      Civil Justice Ordinance, s. 142, applies to suits in which the plaintiff claims perpetual injunction to restrain the defendant from committing a breach of contract or a tort, and a temporary injunction under this section should not be granted unless irreparable injury is likely to happen.

      Babiker Awadalla J. March 24, 1964: —I concur.