Punjab-Haryana High Court
Harbans Singh vs Rajinder Rajan And Anr. on 23 February, 1988
Equivalent citations: AIR1989P&H161, AIR 1989 PUNJAB AND HARYANA 161, (1988) 1 LANDLR 668, (1988) 1 CURLJ(CCR) 595, (1988) 93 PUN LR 467, ILR (1988) 2 P&H 452, (1988) ILR 2 P&H 452
ORDER M.R. Agnihotri, J.
1. Harbans Singh plaintiff (petitioner in this revision petition) owns certain land situated in village Dakha, Tehsil and District Ludhiana, over which he has built a residential house as well as has planted a mango orchard. Respondent Rajinder Rajan proposes to instal a brick-kiln for the manufacture of bricks in the land belonging to Mal Singh, respondent 2 which is in the vicinity of the plaintiffs land. According to the plaintiff, the said defendant-respondent has already applied to the District Food and Supplies Controller, Ludhiana for the grant of necessary licence for installation of the brick-kiln.
2. Feeling aggrieved against the proposed installation of the brick-kiln, the plaintiff filed a suit in the Court of the Subordinate Judge Ist Class, Ludhiana on 12th Dec. 1987 for the grant of permanent injunction restraining Respondent 1 from installing the brick-kiln in the land of respondent 2. An application for the grant of temporary injunction against the said respondent was also submitted by the plaintiff stating therein that according to the statutory provisions contained in the Punjab Control of Bricks Supplies Order, 1972, no brick-kiln could be installed in the locality having residential houses and within a distance of 700 metres from mango orchards or mango plantation and 100 metres from a garden or nursery.
3. The learned Subordinate Judge by his order dt. 12th Dec. 1987 appointed a Local Commissioner to visit the spot in order to give the exact picture about the existing nature of the property and also ordered that "the parties should maintain status quo with regard to the land in dispute till further order".
4. Since this was an ex parte order passed by the learned Subordinate Judge on 12th Dec. 1987 at the time of registering the suit, Rajinder Rajan defendant-respondent filed an appeal against the same before the District Judge. Ludhiana on 14th Dec. 1987. The learned District Judge sent for the lower court file as well as the file pertaining to the application for the grant of license from the Office of the District Food and Supplies Controller, Ludhiana. After perusal of the same and after hearing both the parties, the learned District Judge was of the view that "if the impugned ex parte ad interim order is allowed to stand, it shall result in stalling the proceedings before the District Food and Supplies Controller, the authority competent in law to go into the merits of appellant's application for grant of licence and pass appropriate orders thereon. The District Food and Supplies Controller, as required by the relevant provisions of the order issued under the Punjab Control of Bricks Supplies Order 1972, for the reasons to be recorded in writing, either refuse to grant the licence applied for or grant it, subject to general or special instructions notified by the State Government, from time to time in this regard and after considering in particular whether the site of the kiln is or is not detrimental to the health of the general public or to the crops, gardens, or nurseries, in the close proximity of the site of the kiln. Thus, I find, in the first instance, it is the authority competent to grant or refuse the licence which has to apply its mind to the whole gamut, relevant factors and circumstances. The stage for scrutinising or reviewing the order of the authority by the Court shall arrive only thereafter. Such stage, in the instant case, has not arrived, the same is decidedly premature and as such, the Court has no jurisdiction to intervene. The Court's intervention at this stage indeed tantamounts restraining a lawful authority from discharging functions, the law has enjoined on it". Taking the aforesaid view, the learned District Judge accepted the appeal and set aside the interim order passed by the learned Subordinate Judge on 12th Dec. 1987.
5. Mr. N. C. Jain, learned Senior Advocate, appearing on behalf of the plaintiff-petitioner, has challenged the order of the learned District Judge on two grounds. Firstly, that against the ex parte order passed by the learned Subordinate Judge no appeal was maintainable before the District Judge. Hence, the impugned order passed by the learned District Judge in appeal was without jurisdiction. Secondly, that a prima facie case had been made out for the grant of an interim injunction restraining the defendant-respondent from installing the brick-kiln and, therefore, the order passed by the learned Subordinate Judge should not have been set aside by the learned District Judge in appeal. According to the learned counsel, the order passed by the learned Subordinate Judge was based on the report of the Halqa Patwari dt. 3rd Dec. 1987, according to which 66 mango trees were standing, besides the wheat crop sown at a distance of 2 Killas from the house and tubewell of the plaintiff-petitioner. Therefore, according to the learned counsel if "mango orchards" stood planted, no brickkiln could be installed within 100 metres from the gardentor 700 metres from the mango orchard.
6. Elaborating his first contention, Mr. Jain has referred to the provisions of Order 39, Rule 3 and 4 of the Civil P.C. The crux of the argument advanced is that in a case where the ex parte injunction has been granted by a Court under Order 39, Rule 3, the remedy to the defendant is provided in Rule 4 ibid at the interim order for an injunction can be discharged, varied or set aside by that Court itself on an application made thereto by a party dissatisfied by such an order. Taking the argument further, the learned counsel contends that under Order 43, Rule 1, Clause (r), no appeal shall lie against an Order passed under Order 39, Rule 3 as appeal has been provided only against an order under Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 of Order 39. In support of his submission, reliance has been placed by the learned counsel on the judgments reported as Abdul Shukoor Sahib v. Umachander, AIR 1976 Mad 350, M/s Parijatha v. Kamalaksha Nayak, AIR 1982 Kant 105 and Vasant Diwakar Patrikar v. Union of India AIR 1983 Madh Pra 129.
7. Mooting the aforesaid contention, Mr. Hira Lal Sibal, learned Senior Advocate, appearing on behalf of the respondents has placed reliance on the single Bench judgment of this Court reported as Iqbal Singh v. Chanan Singh, AIR 1966 Punj 165 in which R. S. Narula, J., as his Lordship then was, had taken the view that appeal against the ex-parte order of the trial Court was maintainable under Order 43, Rule l(r) of the Civil P.C. as it was in fact an order under Rule 1 or Rule 2 of Order 39. To the same effect is the view taken by various other High Courts in their judgments reported as Akmal AH v. State of Assam, AIR 1984 Gau 86 (FB), Raja Ramakaran v. B. Ramulu, AIR 1982 Andh Pra 256 Patel Jasmat Sangaji Padalia v. Gujarat Electricity Board, Baroda, AIR 1982 Guj 264 E. Mangamma v. A. Muniswamy Naidu, AIR 1983 Andh Pra 128 In Re : Sankar Kumar Ghosh, AIR 1983 Cal 250 and Sayam Ranjan Bhowmik v. Tripura Public Service Commission, AIR 1983 Gau 46.
8. Being in respectful agreement with, and feeling bound by the decision of this Court in Iqbal Singh's case (AIR 1966 Punjab 165) (supra), I hold that the appeal against the order of the learned Subordinate Judge was certainly maintainable before the District Judge. Thus, the first contention of the learned counsel stands repelled,
9. Refuting the second contention, Mr. Sibal, learned counsel for the respondents, vehemently contended that the report of the Halqa Patwari on which reliance had been placed by the plaintiff-petitioner, did not represent the correct tactual position, inasmuch as the mango plants referred to in the report had only been planted hardly a couple of months back. However, 1 do not want to express any opinion whatsoever about the merits of the case at this stage. Suffice to say, that I have not found any legal infirmity in the order passed by the learned District Judge, nor do I consider that the discretion has been exercised in an illegal or irregular manner. Thus, the second contention also fails.
10. Consequently, the revision petition is dismissed with no order as to costs.