Alloys Anthony Duwe v. Ally Juyawatu Civ. Case 4-A-69, 10/4/69, El – Kindly, D. R.

Alloys Anthony Duwe v. Ally Juyawatu Civ. Case 4-A-69, 10/4/69, El – Kindly, D. R.

The applicant – plaintiff applied for a temporary injunction under Order 37, rule 1 of the Civil Procedure Code of 1966. The applicant and the respondent where joint holders of a mining lease and engaged in the prospecting and mining of Tanzanite under a partnership agreement. The plaintiff alleged that during his absence, the respondent had been operating the mines for his own benefit and had refused to render accounts to him. The respondent produced a document purporting to dissolve the partnership. The appellant claimed that it was forged and at the time of action the validity of the document was being investigated by the police.

            Held: (1) “Although the issue of jurisdiction was not particularly raised, I was asked to state whether the District Registrar has jurisdiction in such interlocutory application. It is not in dispute that my predecessor. …… considered this issue before him when he was dealing with a similar application in High Court Civil Case 4 of 1967 SHANTILAL AGGARWAL v. TARLOK SINGH DHILLON and he held that the District Registrar, as he then was, could hear such applications, and he reached his conclusion on his interpretation of Order 43 of the Civil Procedure Code 1966 as read together with rule 8, the High Court Registries Rules, 1961 (G.N. 12/1962) (amended in 1963) Cap. 453….. Upon reading rule 8 of High Court Registries quoted above, I was satisfied that the District Registrar has jurisdiction to hear such interlocutory applications. Order 43 did not amend infact it saved, the provisions of Rule 8 of High Court Registries Rules 1961. I therefore agree with the decision of my brother District Registrar in Civ. C. 4/67 and hold that the Registries have jurisdiction to hear interlocutory applications in the absence of Judges. I would agree that the English position has no relevance to us, as we are bound by our own rules.” (2) “It is clear that temporary injunctions have often being granted upon disclosure of sufficient facts of probable wastage of partnership property. And at least, temporary injunctions have been issued by the High Court in Civil Case 4 of 1967, 2 of 1968, and 33 of 1968.” (3) “The principles governing temporary injunctions have been neatly summarized in Mulla’s the Code of Civil Procedure 1908, 13th Ed., Vol. 11 at p. 1512. Order 39, rule 1 of the Indian C.P.C. I similar to our Order 37, rule 1 of C.P.C. 1966, and therefore the Indian authorities on the subject are instructive. The granting of a temporary injunction is a matter of discretion of the court …… The court should be satisfied that there is a serious question to be tried at the hearing and that on the facts before it, there is a probability that the plaintiff is entitled to a relief, but he test is whether there is a substantial question to be investigated and whether matters should not be preserved in status quo until that question can be finally decided. It is the view of the learned advocate for the Respondent that it has not been shown that there will be any wastage or irreparable damage if the control of the mines are left with the Respondent that it has not been shown that there will be any wastage or irreparable damage if the control of the mines are any wastage or irreparable damage f the control o the mines are left with the respondent who, after all, had been responsible, since June, 1968, for developing the mines. On the other hand, it was argued that the Respondent was wasting the mines in that he is mining and disposing of the stones to the detriment of the

Applicant, and that it is feared that the Respondent might not be keeping any accounts of his sales. In this way, there was a need that he status qou should be maintained till the dispute is finally heard.” (4) “The facts disclosed by the affidavit disclose that the existence for partnership is in dispute, and that the Respondent was using a title in their joint names for his own benefits. I am of the view that the facts disclosed show that there is a serious question to be tried at the hearing and that there is a probability, if it is finally proved that the alleged dissolution agreement was false, the Applicant might be entitled to some relief’s. It is also clear that he Respondent who is in control of the mines, is in fact mining and selling the stones for his own benefit and the allegation that the Respondent might not, ultimately, disclose the details of his operations, is not illusory. There is, therefore some sound grounds for granting the temporary injunction.” (5) Temporary injunction issued against the Respondent/Defendant until the suit disposed of.