Jammu & Kashmir High Court
Santosh Sharma Alias Santosh Kumari vs Ramesh Kumar Sharma And Others on 29 November, 2023
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
Sr. No. 130
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
MA No. 39/2023
Santosh Sharma alias Santosh Kumari
..... appellant (s)
Through :- Mr. Ajay Sharma Advocate with
Mr. Pawan Saini Advocate.
V/s
Ramesh Kumar Sharma and others .....Respondent(s)
Through :- Mr. Rohit Kohli Advocate.
Coram: HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
ORDER
(29.11.2023.) Caveat No. 1962/2023 Mr.Kohli appears for the caveator. Caveat stands discharged. MA No. 39/2023 1 This appeal is directed against an ex parte ad interim order dated 03.11.2023 passed by the Court of 2nd Additional District Judge, Jammu in File No. 193/Misc in a case titled „Ramesh Kumar Sharma vs. Santosh Sharma and others whereby ad interim injunction has been granted in favour of respondent No.1 herien.
Factual matrix of the case 2 It is stated by learned counsel for the appellant that respondent No.1 herein is the second cousin of the appellant who fraudulently got executed a will deed dated 24.12.2021 from the appellant and her deceased 2 sister Satya Devi. After the death of appellant‟s deceased sister Satya Devi, the share of her immovable and movable properties automatically devolved upon the appellant by law of inheritance under Succession Act. According to the appellant, the aforesaid will deed dated 24.12.2021 reveals that the same was a joint will executed by the two testatrix and in the said will, the appellant and her deceased sister declared that they are joint and absolute owner in possession of total land measuring 28 kanals 10 marlas falling under khasra No. 1180 min. As per the recitals made in the alleged will, the same would come in operation after the death of both the appellant and her deceased sister. It was further provided in the alleged will deed that after the demise of both the testatrix, the land including all their other movable and immovable properties shall be the exclusive properties of the beneficiary. It is stated that sister of the appellant died on 24.01.2023 and in the presence of co-testatrix i.e the appellant herein, the alleged will has not come into effect. Respondent No.1 on 16.05.2023 filed an application before the Court of learned Principal District Judge, Jammu for issuance of succession certificate under the Indian Succession Act. The appellant herein is arrayed as respondent in the said application and he has filed her written statement which is pending adjudication in the said Court. The deceased sister of the appellant during her life time had maintained her accounts in saving bank account No. 0211040100008549 in J&K Bank branch Chowk Chabutra, Jammu and monthly income scheme account No. 4724035263 in the Post Office, Mubarkh Mandi Jammu. In both the accounts, the appellant herein is declared as a nominee by her deceased sister which fact gets substantiated from letter dated 02.06.2023 issued by J&K Bank.
33 It is further stated that respondent No.1 instituted a civil suit on 21.11.2023 against the appellant and others and prior to the institution of the said suit, the appellant herein filed a caveat. However, record reveals that on 01.11.2023, the trial Court issued notice to the counsel for the caveator Mr. V.S.Sani for causing his appearance in the matter on 03.11.2023. The said notice was forwarded to S.O Tamilat Saddar Court, Jammu for service along with copy of plaint and annexures. It is stated that from 01.11.2023 to 03.11.2023, the counsel for the caveator was out of station and the said fact is evident from the report dated 02.11.2023 submitted by the Tamilat wherein it is stated that the counsel for the caveator is not available in the court premises who was informed telephonically about the date of hearing and listing of the case before the concerned Court. It is stated that copy of plaint along with annexures was not served upon the counsel for the caveator. The aforesaid suit came up for consideration on 03.11.2023 and upon consideration of the matter, the proxy counsel for the caveator informed the court regarding non availability of counsel for the caveator. However, the trial Court vide order dated 03.11.2023 by way of ad interim injunction directed respondents No. 2 and 3 not to release any amount in Saving AC No. 0211040100008549 of J&K Bank Branch Chowk Chabutra Jammu and in A.C No. 47124035263 lying in the Post Office Branch Mubarak Mandi Jammu Submissions made by learned counsel for the appellant 4 Learned counsel for the appellant submits that respondent No.1 on the one hand has filed an application for issuance of succession certificate in respect of movable property of deceased sister of the appellant and on the other hand has filed the above titled suit for declaration and permanent prohibitory 4 injunction before the trial Court for declaring him the successor-in-interest and entitlement to inherit all movable and immovable properties of the deceased sister of the appellant on the basis of alleged will executed by both the testatrix which shall come in operation after the death of both the appellant and his sister. In presence of surviving co-testatrix i.e the appellant, no right can be established by the respondent No.1 herein on the basis of said will deed. It is stated that the suit filed by respondent No.1 is not maintainable for the reason that respondent No.1 is seeking declaration to inherit the movable and immovable properties of the appellant as well as her deceased sister on the basis of alleged joint will executed by both the testatrix. It is stated that the trial Court has failed to comply with the provisions of Section 148-A of CPC as subsection (3) of Section 148-A of CPC requires special attention whereby the Court is obliged to serve a notice of the application filed seeking grant of an interim order on the caveator. It is further stated that the impugned order has been passed without affording an opportunity of being heard to the appellant and that the impugned order passed by the trial Court tantamount to grant of final relief asked for in the main suit. It is also stated that the trial Court has committed grave irregularity in relying upon the alleged will which is yet to be acted upon as per the recitals mentioned therein. The trial Court has while passing the impugned order has not taken into consideration one of the basic elements i.e irreparable loss and injury being caused to the respondent No.1 if the interim relief is not granted. Thus, the trial Court has committed material and gross irregularity while passing the impugned order. On this count also, the appeal, according to the appellant, deserves to be allowed. In support of his submissions, learned counsel for the appellant has relied upon judgments of this Court rendered in the case of M/S Astral Traders vs. M/S Haji 5 Mohammad Shaban Dar and others, 1982 AIR (JK) 124, State Forest Corporation and others vs. Nazir Ahmad Baba and others, 2009(3) JKJ 111 and Chajju Ram vs. Milkhi Ram, 2003 (sup) JKJ 435, a judgment of Madras High Court rendered in the case of Muthu Jayanthi vs. C.L.Mahadevan 2014 (1) CTC 254, judgments of the Supreme Court rendered in the case of Venkatesh vs. State of Karnataka 2000 AIR (Supreme Court) 3561 and M. Gurudas and others vs. Rasaranjan and others.
5 Per contra, learned counsel for respondent No.1/caveator herein has stated that the grounds taken by the appellant in the instant appeal are not sustainable on account of the fact that the notice was duly served upon the counsel for the appellant Mr. V.S.Saini which was duly accepted by him. Moreover, copy of plaint along with relevant annexures were also served upon the counsel for the appellant through electronic mode i.e whatsapp . Learned counsel for the respondent No. 1 states that the counsel for the appellant has deliberately chosen not to appear and contest the suit as well as the interim application on merits. It is stated that the appeal against the ex parte ad interim order is not maintainable and it is the practice of this Court and other Courts not to disturb the ex parte ad interim order of injunction but to allow the trial Court to decide the application for grant of ad interim relief after hearing the parties.
6 Heard learned counsel for the parties, considered the submissions and perused the material on record.
7 The appellant herein is aggrieved of an ex parte ad interim directions passed under Order 39 Rule 1 & 2 of CPC thereby directing the 6 respondent Nos. 2 and 3 herein not to release any amount in Saving A.C No. 0211040100008549 of J&K Bank Ltd Branch Chowk Chabutra Jammu and A.C No. 4724035263 lying in the Post Office Branch Mubarakh Mandi Jammu. The appellant has chosen to file this appeal instead of filing application under Order 39 Rule 4 of CPC/written statement before the trial Court.
8 Order XLIII of the Code of Civil Procedure (for short "Code") provides which orders are appealable. Order XLIII sub-rule (r) provides that an order under Rule 1, rule 2, rule 2(a), rule 4 or rule 10 of Order XXXIX of the Code are appealable. It is apt to reproduce Order XLIII rule (r) herein: -
"1.Appeals from orders An appeal shall lie from the following orders under the Provisions of section 104, namely:
(r) An order under rule 1, rule 2, rule 2 (a), rule 4 or rule 10 of order 39"
9. It is nowhere provided that an ex-parte order passed under Order XXXIX rule 1, rule 2 of the Code is not appealable. It can safely be said and held that order of ad-interim injunction whether ex-parte or otherwise passed under Order XXXIX rule 1 and rule 2 of the Code is appealable. In this context, the Full Court Judgment of this Court in M/s Astral Traders v. M/s Haji Mohammad Shaban Dar and ors, reported as 1982 SLJ 404, in para 6 held as under:
"6. Every order of ad-interim injunction, whether exparte or otherwise, and whether made under Rules 1,2 or 4 of Order 39, is on the plain terms of Cl. (r) of Rule 1 of order 43, appealable. There is no room for the argument that the appeal shall lie against only such orders passed under these Rules, as have been passed after hearing both the parties, 7 and nor is there any scope for the argument that Rules 1, 2 and 4 of Order 39 postulate only those orders that are made after hearing both the sides."
10. The Apex Court in a case titled Kishore Kumar Khaitan and anr., vs. Praveen Kumar Singh'', 2006 AIR SCW1077 also laid down the same principle. It is relevant to reproduce para 4 hereunder:
"4. It is necessary to notice at this stage that in an original suit of this nature, it was not appropriate for the Additional District Judge to pass an order directing the parties to maintain status quo, without indicating what the status quo was. If he was satisfied that the appellant before him had made out a prima facie case for an ad interim ex parte injunction and the balance of convenience justified the grant of such an injunction, it was for him to have passed such an order of injunction."
11. In view of the aforesaid enunciation of law, it is clear that an order passed under Order 39 of the Code in ex-parte after hearing the parties is appealable.
12. Now, the question is whether it is appropriate to decide the appeal on merits or direct the trial court to decide the application first. Keeping in view the ratio laid down in the aforesaid cases (supra), it is the choice of the defendant/appellant to choose the remedy and if the appeal is filed and decided on merits, the doctrine of Merger will come into force. The appellants have chosen to file appeal and taken the risk of seeking adjudication from the appellate court instead of approaching the trial court.
13. The Hon‟ble Supreme Court in case titled A. Venkatasubbiah Naidu vs. S. Chellappan and others, reported as AIR 2000 SC 3032 held as 8 under:
"11. It cannot be contended that the power to pass interim ex parte orders of injunction does not emanate from the said Rule. In fact, the said rule is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary, or till further orders or till the disposal of the suit. Hence, any order passed in exercise of the aforesaid powers in Rule 1 would be appealable as indicated in Order 43, Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate Court or to approach the same Court which passed the ex parte order for any relief."
14. This Court in the case titled „State Forest Corporation vs. Nazir Ahmad Baba and others, 2009 (3) JKJ 11 has observed that it is proper to direct the trial court to decide the application, but it is also held that if order is not satisfying the requirement of law, the appeal is to be allowed and impugned order is to be set aside.
15 The Full Court in the aforesaid case has also laid down that at the stage of passing the interim ex-parte order, prima facie satisfaction/opinion is to be framed. The Apex Court in a judgment reported as 2006 AIR SCW 1077 (supra) and in case titled M. Gurdas & Ors v. Rasaranjan & Ors reported as 2006 AIR SCW 4773 also laid down the same law/principle. It is apt to reproduce paras 20 and 22 hereunder:
"20. A finding on 'prima facie case' would be a finding of fact. However, while arriving at such finding of fact, the court may not only must arrive at a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist.
22. While considering the question of granting an order of injunction one way or the others, evidently, the court, apart from 9 finding out a prima facie case, would consider the question in regard to the balance of convenience of the parties as also irreparable injury which might be suffered by the plaintiffs if the prayer for injunction is to be refused. The contention of the plaintiffs must be bona fide. The question sought to be tried must be a serious question and not only on a mere triable issue."
16. The aforesaid view is also supported by Apex Court judgment delivered in case titled United Commercial Bank v. Bank of India and others, reported as AIR 1981 SC1426. It is apt to reproduce paras 49 and 51 herein:
"49. In the instant case, the High Court has assumed that the plaintiffs had a prima facie case. It has not touched upon the question where the balance of convenience lay, nor has it dealt with the question whether or not the plaintiffs would be put to irreparable loss if there was no injunction granted."
51. Even if there was a serious question to be tried, the High Court had to consider the balance of convenience."
17 In the present case, irreparable loss has not even been discussed which is one of the basic principles on which interim injunction can be granted. 18 The Apex Court in the case titled Shyam Sel and Power Limited and another vs. Shyam Steel Industries ltd. (2023) 1 SCC 634 has held that while considering the question of grant of interim injunction, the courts are required to consider three tests of prima facie case, balance of convenience and irreparable injury. It is apt to reproduced para 36 hereunder:
"In any event, though the Division Bench of the High Court observes that for deciding the question with regard to grant of interim injunction, it has to put itself in a position as if it was moved to pass an interim order in the suit, it even fails to take into consideration the principles which a court is required to take into consideration while deciding such an application. It is 10 a settled principle of law that while considering the question of grant of interim injunction, the courts are required to consider the three tests of prima facie case, balance of convenience and irreparable injury. Besides a stray observation that the respondent plaintiff has made out a prima facie case, there is no discussion as to how a prima facie case was made out by the respondent- plaintiff. In any case, insofar as the tests of balance of convenience and irreparable injury are concerned, there is not even a mention with regard to these in the impugned judgment and order of the Division Bench of the High Court. In our view, the approach of the Division Bench of the High Court was totally unwarranted and uncalled for. We refrain ourselves from using any stronger words".
19 Admittedly, respondent No.1 herein has filed a suit which is still pending before trial Court i.e 2nd Additional District Judge Jammu. It also appears that the trial court has not followed the three basic principles in its entirety while granting ex parte injunction order.
20. As discussed hereinabove, the impugned order is illegal. Thus, it is a case of remand.
21. For all that has been discussed above, the instant appeal is allowed and impugned order is set aside with a direction to the trial court to decide the application for grant of ad interim relief filed by respondent/plaintiff therein within reasonable period of time. The appellant is directed to file objections/written statement by or before 04.12.2023 with an advance copy to the other side. Parties are directed to cause their appearance on 04.12.2023 before the Court of 2nd Additional District Judge, Jammu.
(MOKSHA KHAJURIA KAZMI) JUDGE Jammu 29.11.2023 Sanjeev Whether order is reportable:Yes/No