Andhra HC (Pre-Telangana)
Metta Chandra Sekhara Rao vs Ganga Ram And Anr. on 25 February, 2003
Equivalent citations: AIR2003AP378, 2003(2)ALD712, 2003(3)ALT44, AIR 2003 ANDHRA PRADESH 378, (2003) 2 ANDHLD 712, (2003) 9 INDLD 429, (2003) 3 ANDH LT 44, (2003) 3 ICC 46
Author: G. Rohini
Bench: G. Rohini
ORDER G. Rohini, J.
1. The plaintiff preferred this Revision Petition aggrieved by the order dated 29.1.2003 in I.A. No. 1092 of 2002 in I.A. No. 827 of 2002 in O.S. No. 4571 of 2002 on the file of the Court of the XVI Junior Civil Judge-cum-IV Addl. Rent Controller, City Civil Court, Hyderabad.
2. The main suit was filed seeking a decree for perpetual injunction restraining the respondents/defendants from interfering with possession of the plaintiff in respect of the suit schedule property. The plaintiff also obtained temporary injunction in I.A. No. 827 of 2002. Thereafter the defendants filed I.A. No. 1092 under Order 9 Rule 7 of Civil Procedure Code seeking to set aside the ex parte order dated 23.9.2002 in I.A. No. 827 of 2002 on the ground that the ex parte injunction was obtained by the plaintiff fraudulently without serving notice on them. It is further contended that the defendants have been in continuous possession and enjoyment of the suit schedule property from the year 1960 onwards and that they came to know about the order of temporary injunction only on 1.10.2002 when they received the registered notice of the plaintiff dated 30.9.2002 lodging a caveat. Hence they sought for setting aside the ex parte order dated 23.9.2002 in I.A. No. 827 of 2002.
3. The plaintiff in his counter contended inter alia that the temporary injunction in I.A. No. 827 of 2002 was granted after due publication of notice in a Telugu daily "Andhra Prabha" dated 16.9.2002 and therefore the allegations of the defendants are false and baseless and no ground is made out for setting aside the order in I.A. No. 827 of 2002.
4. The Court below by order dated 29.1.2003 allowed the petition holding that no notice was served on the defendants in I.A. No. 827 of 2002. Aggrieved by the said order the plaintiff preferred this Revision Petition.
5. I have heard the learned Counsel for both the petitioner and the respondents.
6. The learned Counsel for the petitioner contended that the Court below grievously erred in treating the application in question as an application filed under Order 9 Rule 13 of Civil Procedure Code and allowing the petition recording a finding that there was no notice to the defendants. According to the learned Counsel, the order in I.A.No. 827 of 2002 being an order of temporary injunction simpliciter but not an ex parte decree cannot be set aside in exercise of power conferred under Order 9 Rule 13 of Civil Procedure Code..
7. On the other hand, the learned Counsel for the respondents while supporting the order under revision submitted that the same does not suffer from any infirmity and therefore the interference of this Court in exercise of revisional jurisdiction is not warranted.
8. I have perused the order under Revision and the other material on record. As can be seen, the Court below considered the application in question in terms of Order 9 Rule 13 of Civil Procedure Code. I find force in the submission of the learned Counsel for the petitioner that the Court below committed an error in invoking the provisions of Order 9 Rule 13 of Civil Procedure Code, since the order in I.A. No. 827 of 2002 is not a 'decree' within the meaning of Section 2(2) of Civil Procedure Code..
9. It is pertinent to note that under Clause (a) of Sub-section (2) of Section 2 of Civil Procedure Code "any adjudication from which an appeal lies as an appeal from an order" is specifically excluded from being a decree. Since an order passed under Order 39 Rules 1 and 2 of Civil Procedure Code is an appealable order under Section 104 read with Order 43 Rule l(r) of Civil Procedure Code, it comes within the purview of the exclusion under Clause (a) of Section 2(2) and consequently it cannot be treated as a "decree" within the meaning of Section 2(2) of Civil Procedure Code. Therefore the irresistible conclusion is that Order 9 Rule 13 of Civil Procedure Code cannot be invoked for setting aside an order of ex parte temporary injunction passed under Order 39 Rules 1 and 2 of Civil Procedure Code. Hence the order under revision setting aside the order of temporary injunction granted in I.A. No. 827 of 2002 invoking the provisions of Order 9 Rule 13 of Civil Procedure Code cannot be upheld.
10. However, I am unable to agree with the contention of the petitioner that the only remedy available to the respondents is to prefer an appeal against the order of temporary injunction. Notwithstanding the fact that they were set ex parte, in my considered opinion, it is open to the respondents to file an application under Order 39 Rule 4 of Civil Procedure Code seeking to set aside the order in I.A. No. 827 of 2002 made under Order 39 Rule 1 of Civil Procedure Code. It is relevant to note Rule 4 of Order 39 of Civil Procedure Code, which runs as follows:
"Rule 4. Order for injunction may be discharged, varied or set aside:--Any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order.
Provided that if an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interest of justice.
Provided....................."
11. It is pertinent to note that two grounds as specified under the first proviso to Rule 4 are available to the party seeking to set aside the order of temporary injunction viz., that the party has knowingly made a false or misleading statement in relation to a material particular and that the injunction was granted without giving notice to the opposite party. Therefore, I am of the view that even a party who is set ex parte in the proceedings can invoke Rule 4 of Order 39 of Civil Procedure Code and subject to the satisfaction of the requirements of the proviso, the Court can vary, modify or set aside the order of temporary injunction granted under Order 39 Rules 1 and 2 of Civil Procedure Code.
12. For the aforesaid reasons the order under Revision must be held to be vitiated by material irregularity in exercise of jurisdiction vested under law and liable to be set aside.
13. Accordingly the order under Revision is set aside and the matter is remitted directing the Court below to consider I.A. No. 1092 of 2002 afresh treating it as an application under Order 39 Rule 4 of Civil Procedure Code and to pass appropriate orders in accordance with law after affording due opportunity to both the parties.
14. It is made clear that the Court below shall not be influenced by any findings recorded in the order under revision and consider the application afresh.
15. With the above directions the Civil Revision Petition is allowed. No costs.