Andhra HC (Pre-Telangana)
Gautam Chand Chordia And 6 Others vs Smt.Majida Hasany And 8 Others on 2 March, 2017
Equivalent citations: AIRONLINE 2017 HYD 89
Bench: C.V.Nagarjuna Reddy, T.Rajani
HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY AND HONBLE SMT JUSTICE T.RAJANI Writ Petition No.6406 of 2017 02-03-2017 Gautam Chand Chordia and 6 others..... Petitioners Smt.Majida Hasany and 8 others.....Respondents
Counsel for the Petitioners:Mr.Kishore Rai Counsel for the respondents: Mr.V.Eswaraiah Chowdhary <Gist:
>Head Note:
? Cases Referred:
1.2017 ALD 655 (DB) 2.2016 (6) ALT 491 DB The Honble Sri Justice C.V.Nagarjuna Reddy and The Honble Smt. Justice T.Rajani Writ Petition No.6406 of 2017 Date: 02.03.2017 The Court made the following:
Order: (Per the Honble Sri Justice C.V.Nagarjuna Reddy) This Writ Petition is filed against Order, dated 10-02-2017, in IA.No.186 of 2016 in LGOP.No.263 of 2017 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad.
We have heard Mr.Kishore Rai, learned Counsel for the petitioners, and Mr.V.Eswaraiah Chowdhary, learned Counsel for respondent Nos.1 to 7.
Respondent Nos.1 to 6 filed LGOP.No.263 of 2017 to declare the petitioners as land grabbers in respect of the petition schedule property. Along with the OP, they have filed the aforesaid IA under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) for grant of interim injunction restraining the petitioners herein and respondent No.7 from making further construction. By the impugned order, the lower Court has granted interim injunction while ordering notice to the petitioners. Feeling aggrieved by this order, respondent Nos.1 to 7 in the LGOP filed this Writ Petition.
At the hearing, Mr.Kishore Rai, learned Counsel for the petitioners, advanced three submissions viz., (i) that the lower Court has straight away allowed the application for injunction and granted interim injunction as prayed for; (ii) that even assuming that the impugned order is interim in nature, the Court below has failed to comply with the mandatory requirements of Rule 3 of Order XXXIX CPC; and (iii) that the lower Court has failed to consider the IA for injunction by applying the well-known parameters of prima facie case, balance of convenience and irreparable injury.
In support of his submission, the learned Counsel has placed reliance on Dr.KL.Narayana vs. Special Tribunal u/A.P.Land Grabbing Prohibition Act, 1982-cum-Chief Judge, City Civil Courts, Hyderabad and others .
Mr.V.Eswaraiah Chowdhary, learned Counsel for respondent Nos.1 to 6, submitted that by the impugned order, the lower Court has granted ad interim injunction; that the words petition is allowed were mentioned by inadvertent mistake by the lower Court and that a reading of the order in its entirety makes it clear that the lower Court has granted an ad interim injunction until further orders. The learned Counsel further submitted that since the impugned order of injunction is ex parte in nature, the Civil Miscellaneous Appeal does not lie. In support of his submission, he has placed reliance on the judgment of this Court in Jagadamba Phosphate vs. Coromandel International Ltd., Secunderabad . The learned Counsel further submitted that the lower Court has discussed the prima facie merits of the case; that it was satisfied that his clients deserve an ad interim order and that therefore, the impugned order does not warrant interference by this Court.
We have carefully considered the submissions of the learned Counsel for the parties with reference to the record.
As regards the first submission of the learned Counsel for the petitioners, undoubtedly, the words in the concluding portion of the impugned order In the result, the petition is allowed would indicate that the Court below has disposed of the petition. However, if we read the order as a whole, these words appear to be the result of an inadvertent error committed by the lower Court. The sentences preceding and following these words would make it clear that the Court below has intended the impugned order to be passed purely as an interim order and not as a final order. The said portion of the order reads as under:
Hence, in the above circumstances, interim injunction is granted in favour of the petitioner restraining the respondents from making any further construction in the schedule property until further orders.
In the result, the petition is allowed restraining the respondents from making further constructions until further orders. Issue urgent notice to respondents through courier and speed post. (emphasis supplied) Though the lower Court has not properly applied its mind in using the words the petition is allowed, as we cannot read this portion in isolation and having regard to the remaining portion of the order as extracted above, we have no hesitation to hold that by the impugned order, the lower Court has only granted an ad interim injunction while keeping the IA pending.
With regard to the second submission of the learned Counsel for the petitioners, Rule 3 of Order XXXIX CPC mandates that before granting an injunction, the Court has to direct notice to the opposite party. However, this provision carved out an exception where the Court is empowered to grant an ad interim order of injunction without giving notice of the application to the opposite party and in such an event, it shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay. This provision makes issuance of notice a rule and grant of an ex parte injunction order an exception. Wherever the Court chooses to follow the exception, it has to necessarily comply with the mandatory requirement of recording reasons for its opinion that the object of granting injunction would be defeated by delay. A perusal of the impugned order shows that nowhere the Court below has referred to the aspect of necessity to grant an ex parte injunction and that by issuing notice the object, with which the injunction petition was filed, would be defeated. Therefore, in our opinion, the impugned order does not conform to the mandatory requirement of Rule 3 of Order XXXIX CPC.
As regards the third submission of the learned Counsel for the petitioners, an Application for injunction is considered by the Courts on the well-known parameters of prima facie case, balance of convenience and irreparable injury. But, nowhere in the impugned order, the lower Court has discussed these elements.
In Dr.KL.Narayana (1 supra), one of us (CVNR, J) speaking for a Division Bech inter alia held as under:
An order of injunction is a double edged weapon, in that, while it is a boon for a party litigating bona fide, it is a bane for a party who suffers such order at the instance of the other party, unleashing speculative and vexatious litigation. Unfortunately the Special Court which has failed to observe the inherent lacunae and weaknesses in the case of respondent Nos.2 to 7, has chosen to grant a comprehensive order of injunction having far-reaching consequences. It has failed to discuss the three elements of Prima facie case, balance of convenience and irreparable injury before granting the order of injunction.
As regards the submission of the learned Counsel for respondent Nos.1 to 6 on the maintainability of the Civil Miscellaneous Appeal against the impugned order, this Court in Jagadamba Phosphate (2 supra) held as under:
7. Dealing with the scope of an appeal arising out of an ad interim injunction order, a Division Bench of this Court in Innovative Pharma Surgicals v. Pigeon Medical Devices (P) Ltd. and others, 2004 (3) ALD 228 (DB) = 2004 (4) ALT 8 (DB), held that as a matter of course, no appeal lies against an ad interim injunction order, except in extraordinary circumstances, as to the non-compliance of the mandatory provisions, or the rarest of the rare cases, where the order is perverse or bias or it suffers from lack of jurisdiction.
10. Since the impugned order contains reasons, it satisfies the requirements of the proviso to Rule 3 of Order-XXXIX CPC. Therefore, applying the tests indicated in Innovative Pharma Surgicalss case (supra), we are of the opinion that it is not a fit case for entertaining the appeal against the ad interim injunction order.
In our opinion, the judgment in Jagadamba Phosphate (2 supra) does not come to the aid of respondent Nos.1 to 7 for the reason that the lower Court has failed to comply with the mandatory requirement of Rule 3 Order XXXIX CPC.
On a thorough consideration of the impugned order, we are of the opinion that the Court below has committed a serious jurisdictional error in failing to comply with the mandatory requirement of Rule 3 of Order XXXIX CPC and also in not discussing the essential elements of prima facie case, balance of convenience and irreparable injury for granting an ad interim injunction even without notice to the petitioners.
For the afore-mentioned reasons, the impugned order cannot be sustained and the same is, accordingly, set aside. The lower Court is directed to dispose of the IA on merits keeping in view the observations made herein before and after hearing both parties.
As a sequel, WPMP.No.7839 of 2017, filed by the petitioners for interim relief, is disposed of as infructuous. _____________________ C.V.Nagarjuna Reddy, J) ___________ (T.Rajani, J) Dt: 2nd March, 2017