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Present: Garvin and Drieberg JJ.
RAMBUKPOTA t>. JAYAKODDY.101—D. G. Kurunegala, 12,914.
Injunction—Prayer in plaint—Affidavit—Civil Procedure Codef s. 662.
Where the plaint in an action includes a prayer for an interiminjunction, the application for the injunction must be supported byan affidavit.
PPLICATION to revise an order of the * District J udge ofKurunegala.
Hayley, K.G, (with Weerasooriya), for applicant. .
H. Y. Perera, for respondent.
May 26, 1928. Drieberg J.—
The respondent brought this action on January 27, 1928, for adeclaration of title to a portion of land an acre in extent and partof his estate, which he said the petitioner had taken forcible posses-sion of. He alleged that through this portion ran his estate road,and that the petitioner had blocked up this road and prevented hisuse of it. In addition to the usual relief of declaration of title,ejectment, and damages, he prayed for an injunction restraining thepetitioner from preventing his use of the road until the decision ofthe action. When presenting the plaint the respondent's proctormoved for an interim injunction on the petitioner. The Courtallowed summons for February 10, but summons was not taken outuntil February 6, on which day a notice was also issued to thepetitioner to show cause on February 10 against the issue of theinjunction.
Appearance was entered for the petitioner on February 10, andtime was extended to February 24, on which day the petitioner'sproctor took the objection that the notice had issued without propermaterial as there was no petition and affidavit by the respondent.The learned District Judge over-ruled the objection, holding thatthe proceedings were in order, the provisions of section 662 of theCivil Procedure Code being complied with, and fixed a day forinquiry. Before this day the petitioner applied to this Court thatthis order be dealt with in revision and set aside, and asked for astay of proceedings in the District Court, which was allowed.
The provisions of section 87 of the Courts Ordinance and of chapterXLVIII. of the Civil Procedure Code apply only to interim andinterlocutory injunctions and not to perpetual injunctions, whichcan be ordered only in the final decree in an action.
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An interim injunction may be applied for in tlie plaint, or it maybe made in the course of the action though not a6ked for inthe plaint. The only difference in the procedure to be followed in thetwo cases is this: Where the interim injunction is not prayed forin the plaint a petition is required by section 662 of the Code, butthis section says that a petition is not necessary where the injunctionis prayed for in the plaint. In both cases, however, an affidavit isessential, this requirement being imposed by section 662 of the Code.
The meaning of section 662 is open to some cpntention, but I thinkthe punctuation supports the view that the exception applies to thepetition only and not to the affidavit.
A plaint need do no more than set out the right on which theplaintiff claims his cause of action against the defendant and therelief claimed; but a party has to place more material than thisbefore a Court to entitle him to an injunction, and the party noticedis entitled to know what this material is and who deposes to itstruth.
The order of the District Court of February 24, 1928, is set aside.If the respondent desires to proceed with his application for theinjunction he must hie an affidavit setting out the circumstanceson which he claims to be entitled to it.
The respondent will pay to the petitioner the costs occasioned bythe application in the District Court and the costs of theproceedings in this Court.
Garvin J.—I agree.