Andhra HC (Pre-Telangana)
Karni Adivamma And Others vs Karada Chenchu Naidu on 31 August, 1999
Equivalent citations: 1999(6)ALD93, 2000(2)ALT411, 2000 A I H C 988, (2000) 3 CIVILCOURTC 250, (1999) 6 ANDHLD 93, (1999) 4 ICC 621, (2000) 2 ANDH LT 411, (2000) 3 CIVLJ 117
Author: Elipe Dharma Rao
Bench: Elipe Dharma Rao
JUDGMENT
1. This appeal is directed against the order dated 18-12-1992 in IA No.399 of 1992 in OS No.97 of 1992 onthe file of the District Munsif, Palasa, whereby the application made by the respondent K. Chenchu Naidu S/o Appanna was dismissed (sic allowed).
2. The above suit OS No.97 of 1992 was filed by the respondent/plaintiff seeking permanent injunction restraining the appellants herein, their sons, servants, agents and workmen from ever interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule properties. In the above suit, he also filed IA No.399 of 1992 for the grant of temporary injunction against the appellants herein and the learned District Munsif, Palasa, on the basis of ihe submissions made by the Counsel for the respondent herein and on the basis of the affidavit filed in support of the petition IA No.399 of 1992 granted interim injunction on 18-12-1992 restraining them from interfering with the peaceful possession and enjoyment of the plaint schedule properties until further orders of the Court, which is assailed in this appeal.
3. The learned Counsel for the appellants submitted that there is no justification in issuing the above said interim injunction and it is contrary to Rule 3 of Order 39 of the Code of Civil Procedure (for short the Code), and it is mandatory to issue notice and serve copy of the plaint, affidavit and other documents on which the petitioner relies before passing order of interim injunction. It is further submitted that even on 10-1-1993 on which date the appeal was filed, the mandatory requirements of Rule 3 of the said order were not complied with. It is also submitted that a fraud was played on the Court in suppressing the material fact and obtained interim injunction from the Court below, that as the disputed schedule properties are agricultural lands and hence, grant of ex parte order of injunction is unwarranted in the facts and circumstances of the case and therefore, prayed for interference of this Court to rectify the illegality committed by the petitioner in obtaining the ex parte order of interim injunction.
4. The respondent-plaintiff has filed the suit stating that he was the absolute owner of the properties described in the schedule annexed to the suit plaint and the plaintiff got the properties in the family arrangement that took place in the year 1978 between himself and his father, eversince the division by metes and bounds, the plaintiff has been in enjoyment of the plaint schedule properties exclusively in his own right and in open assertion of hostile title to the knowledge of all including the defendants and paying taxes in recognition of his title and possession, that the father of the plaintiff has also conveyed his share of properties by way of registered settlement deed on 30-9-1992 in his grand-son's favour, wherein he has unequivocally admitted the division of the properties and therefore, the division of the family properties was acted upon by each sharer. Therefore, the plaintiff has got title and possession over the plaint schedule properties and the defendants never denied the title and possession of the plaintiff over the plaint schedule properties. On the other hand, they have admitted the title and possession of the said properties. He further stated that the defendants have nothing to do with the plaint schedule properties and they have no manner of right whatsoever over the plaint schedule properties and that they have no respect for law and order and they are the staunch supporters of Sarpanch and Ex-Sarpanch of Amalapadu village, that the defendants at the evil advice of the Ex-Sarpanch, committed theft of the usufruct from the coconut tope for which the plaintiff reported the matter to the police, Vajrapukotturu and emboldened by the inaction of the police, the defendants proclaimed in the village that they would forcibly occupy the plaint schedule property dispossessing the plaint iff there from and that they are capable of translating their threats into action. That the plaintiff cannot resist thethreatened invasion of the defendants except by way of redressal through a Court of law and hence, the suit was filed praying for the grant of temporary injunction restraining the defendants, their sons, servants, workmen, etc., from interfering with the peaceful possession of the plaintiff over the plaint schedule properties.
5. Basing on the facts and circumstances of the case, the learned District Mtinsif, after hearing the arguments of the Counsel for the plaintiff exercised the powers under Order 39 Rules 1 and 2 of the Code, and granted interim injunction as prayed for, which is impugned in this appeal.
6. Now let us examine the provisions of Order 39, Rules 1 to 3 of the Code. Rule 1 of Order 39 contemplates wherein any suit it is proved by affidavit or otherwise:
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree; or
(b) that the defendant threatens, or intends, to remove or dispose of this property with a view to defrauding his creditors;
(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit;
the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property of dispossession, of the plaintiff, or otherwise causing injury to the plaintiff, in relation to any property in dispute in the suit as the Court may think fit, until the disposal of the suit or until further orders.
7. Rule 2 of the Said Order, contemplates grant of injunction to restrain repetition or continuance of breach. Tin's Rule contemplates that the plaintiff may at any time after the commencement of the suit and either before or after judgment, apply to the Court for temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. Sub-rule (2) of Rule 2 of Order 39 of the Code contemplates that the Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security or otherwise, as the Court thinks fit.
8. Rule 3 of the said Order contemplates that "the Court shall in all cases except where it appears that the object of granting the injunction, would be defeated by (he delay before granting an injunction direct notice of the application for the same to be given to the opposite party." The proviso to this Rule says that "where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant:
(a) to deliver to the opposite party, or to send him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with;
(i) a copy of the affidavit filed in support of the application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant relies and
(b) to file on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.
This is the provision under which the learned Counsel for the appellant has relied on and submitted that the mandatory requirements under Order 39 Rule 3 were not fulfilled by the Court below white granting temporary injunction. As contemplated under Rule 3 proviso, before granting temporary injunction the Court has to record its reasons for coming to the conclusion that the object of granting inerini injunction would be defeated by such delay.
9. The learned Counsel for the appellant nextly submitted that even on the date of filing of the appeal, no copies of the affidavit filed in support of the application, copies of the plaint and the documents on which the applicant relied were served on the appellant-defendans in the suit. Therefore, in view of the non-compliance of the mandatory provisions under Rule 3 the order of the learned District Munsif is liable to be set aside.
10. The proviso to Rule 3 was inserted by Act 104 of 1976 by Section 86, with effect from 1-2-1977. Under the proviso when an ex parte injunction is proposed to be given, then the Court has to record the reasons for coming to the conclusion that the object of granting the injunction would be defeated by delay and in case, this procedure is followed, then the Court has further to order the applicant to send notice and other documents expeditiously to the opposite party with a view to get a rapid decision.
11. As seen from the submission made by the learned Counsel for the appellant that the Court has not recorded any reasons before coming to the conclusion that if temporary injunction is not granted, the object of granting of temporary injunction would be defeated by delay. Further the Court has also not directed the respondent-plaintiff to serve copy of the plaint, affidavit, and the documents on which he relied, on the appellants before obtaining injunction. Though notices were served on the respondent in this appeal on 7-3-1994, the respondents have neither appeared personally or through an Advocate. In those circumstances, the assertions made by the appellants can be accepted to be true by way of drawing an adverse inference.
12. The learned District Munsif, after considering the submissions made by the learned Counsel for the appellant and after going through affidavit which was filed in support of IA 399 of 1992 granted the interim injunction which reads as under:
Upon motion made unto this Court by Sri P.L. Narayana, advocate, for the petitioner/plaintiff and upon reading the petition and affidavit and upon hearing the said advocate for the said petitioner, this Court doth order that an interim injunction be issued against you ..... D.A. Kamilamma.....
Your relatives, agents, associates, servants, and workmen from ever interfering with the petitioners peaceful possession and enjoyment of the petition schedule property until further orders of this Court.
13. As seen from the order of the learned District Munsif, he passed the order after going through the affidavit Filed in support of the IA and after hearing the arguments of the learned Counsel for the petitioner. The order passed by the Courtbelow does not indicate that he lias recorded the reasons while passing the order, as contemplated under Rule 3 of Order 39 of the Code and no direction was given to the petitioner/plaintiff to serve copies of the petition, affidavit, plaint and the documents on which the petitioner relies, to insist the Court to pass, the above said order. The condition imposed in Rule 3 and its satisfaction by recording reasons before granting temporary injunction is mandatory and if no reasons are recorded stating that if temporary injunction is not granted and if notice is ordered, the very purpose would be defeated due to delay. The proviso also mandates the learned District Munsif to direct the petitioner to serve copies of the petition, plaint, and documents on which he relies. As seen from Rule 3, it contemplates that the District Munsif has to record his reasons before granting interim injunction and if notice is ordered, it will defeat the purpose of granting interim injunction due to delay. Proviso to the said Rule mandates that the Magistrate shall direct the petitioner-plaintiff lo serve notice of the affidavit, documents, etc., on which he relies to pursue the Court for passing ex parts temporary injunction and those documents have to be served on the opposite party. If the above two mandatory requirements are not satisfied under Rule 3 and proviso, any order passed by the District Munsif is violating the mandatory requirements under Rule 3 and the proviso. Therefore, prima facie, it is evident that the learned District Munsif while granting temporary injunction has not satisfied the requirements of Rule 3 and the proviso.
14. In similar circumstances, a Division Bench of this Court in Bacharaj Singhvi v. Hastimal Khothari, 1980 (2) ALT 472 has held that it is incumbent upon the Court before granting the injunction to record reasons for its opinion that the object of granting of injunction would be defeated if any delay is caused in the process of notice being served on the respondents. The Court held granting injunction without recording reasons is unsustainable.
15. Therefore, I am satisfied that the injunction granted by the learned District Munsif is contrary to the provisions of Rule 3 and proviso of Order 39 of the Code and therefore, it is unsustainable and liable to be set aside and accordingly set aside.
16. In the result, the appeal is allowed setting aside the impugned order and directing the lower Court to dispose of the IA No.399 of 1992 in OS No.97 of 1992 after hearing the parties. No costs.