IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.20018 of 2010 SHRI SHYAM LAL SARAF . Versus SHRI ISHWAR SINGH & ORS . ----------- For the petitioner:- Mr. J. S. Arora, Adv. Mr. Ajay Bhatia, Adv. For the Respondent nos. 2 and 3 :- Mr. Pushkar Narain Shahi, Adv. Mr. Jitendra Kishore Verma, Adv. For Respondent no. 2:- Mr. Gopal Prasad Gupta, Adv. ----------------- 2 17.03.2011 Heard learned counsel for the petitioner and for the respondent nos. 1 and 3 who are stated to be the plaintiffs and also for respondent no. 2, defendant in the suit. The respondent-plaintiff filed an application for injunction. Before disposal, an application was filed to amend the relief from that of injunction to one of mandatory injunction. In Title Suit No. 1 of 2008, the Civil Judge, Junior Division No. 2, simultaneously by a common order dated 30.8.2008 rejected the amendment sought and yet proceeded to decide whether grounds for a mandatory injunction were made out or not. Aggrieved by the same the respondent-plaintiff preferred Misc. Appeal No. 20 of 2008 before the District Judge, Samastipur. By the impugned order dated 7.10.2010, the appeal has been allowed and mandatory injunction has been granted. Counsel for the petitioner-defendant 2 submitted that the appellate Court erred in granting mandatory injunction. The trial Court never considered the prayer for mandatory injunction on merits since the amendment sought for that relief had been rejected. Counsel for the respondent-plaintiff urged that the trial Court while the refusing prayer for amendment in the injunction application has delved into the merits and arrived at a prima facie finding that the relief of mandatory injunction could not be granted and therefore there was no error in the impugned order calling for interference passed after hearing the parties. The Court on consideration of the submissions arrives at the conclusion that if the trial Court had declined the prayer for conversion of the relief from one of injunction to mandatory injunction, the matter stops there. It would have been for the aggrieved to challenge that order. The moment the trial Court rejected the prayer for amendment, there was no occasion for it or jurisdiction to deal with the issue whether a case for grant of mandatory injunction had been made out or not. Either the trial Court had jurisdiction to decide a case for mandatory injunction after allowing 3 the amendment or it did not by reason of rejecting the prayer for amendment. The two powers are inherently contradictory. This Court therefore holds that the moment the trial Court held that the amendment sought for was not permissible, any observations made in the order on merits with regard to the relief of mandatory injunction automatically become unsustainable. In view of that finding the appellate order dated 7.10.2010, automatically collapses. Accordingly, the order dated 30.8.2008 of the Civil Judge, Junior Division No. 2 and the District Judge, Samastipur in Misc. Appeal No. 20 of 2008, are both set aside. The matter is remanded to the Court of Civil Judge, Junior Division No. 2, to rehear the parties afresh and pass appropriate order in accordance with law. Let the same be done expeditiously provided the parties co-operate. The writ application stands allowed. P. Kumar ( Navin Sinha, J.)