Orissa High Court
Sri Rabindra Kumar Mohanty vs Smt. Sujata Mohapatra And Others on 10 July, 2015
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
HIGH COURT OF ORISSA: CUTTACK
FAO NO. 86 OF 2012
From the order dated 16.01.2012 passed by the learned Civil Judge
(Senior Division), Jaleswar in I.A.No.7 of 2012 arising out of C.S. No. 5 of
2012.
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Sri Rabindra Kumar Mohanty ...... Appellant
-Versus-
Smt. Sujata Mohapatra and others ...... Respondents
For Appellant : M/s. D.K. Dey, C.K. Dey
& A.K. Das
For Respondents : M/s. D.K. Mohanty, D.K. Rath
& S.C. Tripathy
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Date of Judgment: 10.07.2015
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
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K.R. Mohapatra, J.This appeal has been filed assailing the order dated 16.01.2012 passed by the learned Civil Judge (Senior Division), Jaleswar in I.A. No. 7 of 2012 arising out of C.S. No. 5 of 2012, wherein, the learned Civil Judge granted an ex parte ad interim injunction in exercise of power conferred under Order 39 Rule 3, C.P.C. restraining the appellant and others from alienating the suit property during pendency of the suit.
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2. Civil Suit No.5 of 2012 has been filed by plaintiff/respondent no.1 for partition of the suit schedule property, to declare the gift deed executed by the defendant nos. 1 to 3 in favour of defendant nos. 4 and 5 and different sale deeds executed in favour of defendant nos. 5 and 6 as null and void and for permanent injunction. Along with the plaint, the plaintiff-respondent no. 1 filed an application under Order 39 Rule 1 and 2, C.P.C. (I.A. No.7 of 2012) praying, inter alia, to restrain the defendants from alienating the suit property. The plaintiff also filed an application under Order 39 Rule 3, C.P.C. along with the said interim application with a prayer to pass an ex parte ad interim injunction. Entertaining the aforesaid applications, the learned Civil Judge by his order dated 16.01.2012 passed an ex parte interim order restraining the opposite parties therein, i.e., the appellant and respondent nos. 2 to 4 from alienating any part of the suit property during pendency of the suit. The defendant no. 5 (appellant) being aggrieved by the said order has preferred this appeal.
3. At the outset, Mr. D.K. Dey, learned counsel for the appellant advanced his argument on the question of maintainability of the appeal and submitted that the power of the Court to grant an ex parte ad interim injunction does not flow from Order 39 Rule 3 C.P.C., but from the provisions under Section 94 read with Order 39 Rule 1 and 2 C.P.C. The impugned order of ad interim injunction being passed under Order 39 Rule 1 and 2, C.P.C., the appeal is very much maintainable under Order 43 Rule 1(r) of C.P.C.
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4. The rules of natural justice demand that when an application under order 39 Rules 1 and 2, C.P.C. is made before a court, the person(s) against whom the relief is sought for must be given an opportunity of being heard. But, situation/circumstance may demand immediate interference of the court to pass an order, which if not passed may occasion failure of justice and would defeat the very purpose of making such application. In such a situation, the Court may proceed to entertain the application for interim injunction filed under Order 39 Rules 1 and 2, C.P.C. before issuance of notice to person(s) against whom the relief is sought for. This is the requirement of Rule 3. However, proviso to Rule 3 is introduced in order to restrict the court to exercise such power liberally, which requires the court to record its reason for postponement of notice when it proposes to pass an ex-parte ad-interim order of injunction. Thus, it is quite clear that exercise of power under Rule 3 of Order 39, C.P.C. is available only for issuance and/or postponement of notice and it has nothing to do with passing of an order of interim injunction. Accordingly, an ex-parte ad interim order of injunction can only be passed in exercise of power conferred under Order 39 Rules 1 and 2, C.P.C. In the case of A. Venkatasubbiah Naidu -v- S. Chellappan and others, reported in AIR 2000 SC 3032, the Hon'ble Supreme Court while dealing with similar situation held as 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 4 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."
Situation, however, is different when the Court refuses postponement of the notice before passing an order of ex parte interim injunction. When the Court directs for issuance of notice under Rule 3 of Order 39, the Court neither refuses nor passes an order of injunction. In that case, the Court decides to take up the application in a later date after notice to the opposite party. Thus, neither any right of the party is affected nor any order of refusing or granting interim order of injunction is passed. In the case of Naliniprava Patnaik and another -v- Smt. Jyotirmayee Das and others, reported in 1989 (II) OLR 455 and subsequently in the case of Bidulata Das -v- Braja Bihari Palit and others, reported in AIR 1993 (Orissa) 78, this Court held as follows:
"9. xxx xxx xxx When the Court is not satisfied that it should consider the application for temporary injunction under O. 39, Rule 1 and 2, CPC before notice to opposite party, it does not pass an order under O. 39, Rule 1 or 2 CPC. It postpones the consideration of such application to a later date after notice to the opposite party as envisaged under Order 39, Rule 3 proviso CPC. Such order not being an order under Order 39, Rule 1 or 2 C.P.C., right of appeal Order 43, Rule 1(r) cannot be exercised in respect of such an order.
10. An order under O. 39, Rule 1 or 2 CPC, may be either by grant of temporary injunction or refusal to grant such injunction. Where that order is passed ad interim for further consideration it has the same effect as an order of temporary injunction till it remains in 5 force. Thus, right of the party restraining is effected. In that view of the matter, an appeal lies against such an order. Where, however, the Court adjourns such an application to the future date after notice to opposite party, no right of any party is affected. Application of the party making the application remains pending for future consideration. Such an order cannot be treated as an order refusing to grant injunction.
xxx xxx xxx"
5. Further, Mr. Dey, learned counsel for the appellant drawing attention of this Court to Rule 3-A of Order 39, C.P.C. submitted that when an order in exercise of power under Rule 3 is passed by postponement of notice to the party against whom the relief is sought for, the Court should make an endeavour to finally dispose of the application under Order 39 Rules 1 and 2 C.P.C. within thirty days from the date on which the injunction was granted and where it is unable so to do, it shall record its reason for such inability, but, in the instant case, though an ex parte ad interim injunction was passed on 16.01.2012, the learned Civil Judge has not made any endeavour to dispose of the application as yet.
He further submitted that while passing the ex parte order of injunction before issuance of notice to the opposite parties, the learned Civil Judge passed an order directing the opposite parties not to alienate the suit property during pendency of the suit, which means he has passed an absolute order of injunction before issuance of notice to the opposite parties in the I.A. Such an order is per se illegal. He further submitted that failure on the part of the Court to do so gives right to the aggrieved party to prefer an appeal against the order of ad interim injunction, notwithstanding the remedy available under Rule 4 of Order 39 C.P.C. In 6 the case at hand, the ad-interim order of injunction has been passed on 16.01.2012 and is in force till date. He also relied upon the decision in the case of A. Venkatasubbiah Naidu (supra), wherein, the Hon'ble Apex Court observed as follows:
"19. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the Court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43, Rule 1 of the Code. He cannot approach the appellate or revisional Court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party who does not get justice due to the inaction of the Court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39, Rule 3-A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction against the order remaining in force. In such appeal, if preferred, the appellate Court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate Court in complying with the provisions of Rule 3-A. In appropriate cases the appellate Court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule."
6. In view of the discussion made above and the law laid down (supra), I have no hesitation to hold that an appeal is maintainable as against an ex parte ad interim order of injunction as provided under Order XLIII Rule (1) (r) C.P.C., but not against the order refusing to exercise power under Order 39 Rule 3 C.P.C. Taking into consideration 7 the facts and circumstances of this case, I hold that this appeal is maintainable.
7. Learned counsel for the appellant further submitted that the plaintiff-respondent no. 1 is not entitled to an order of interim injunction as the ingredients of interim injunction are not satisfied in the case at hand. It is contended that in a pending suit, alienation if made would be hit by doctrine of lis pendens and as such, no irreparable loss can be caused to the plaintiff even if there is alienation as the purchaser would be bound by the decision in the civil suit, whether or not they are impleaded as parties to the suit. In support of his contention, he relied upon the decision in the case of M/s. Graftek Pvt. Ltd. and others -v- Sri Lord Lingaraj Mahaprabhu Bije, Bhubaneswar, reported in 1998 (II) OLR 404, wherein this Court in paragraph-8 of the said judgment observed as follows:
"8. So far as the question of irreparable loss is concerned, the trial Court does not appear to have adverted to this aspect. The injunction sought for is against alienation and against making any construction on the disputed land. So far as alienation is concerned, since a suit is already pending, the doctrine of lis pendens would be squarely applicable and as such no irreparable loss can be caused to the plaintiff even if there is alienation as the alienese would be bound by the decision in the civil suit, whether they are impleaded or not impleaded as parties to the suit. To allay any further apprehension in the mind of the plaintiff, a condition can also be imposed to the effect that in case the property is alienated, it must be indicated by the vendor in the sale deed that the property is subject-matter of the suit and the purchaser should be bound by the decision of the Civil Court."
8On the other hand, it is objected to on the ground that, alienation, if any, made during pendency of the suit, may lead to multiplicity of litigation and the plaintiff would be deprived from enjoying the fruits of the decree in the event of his success.
8. In view of the decision in the case of M/s. Graftek Pvt. Ltd. (supra), law is no more res integra that no irreparable loss can be caused to the plaintiff if there is alienation during pendency of the suit as the alienee would be bound by the decision in the civil suit, whether or not the purchasers are impleaded as parties to the suit because the purchasers will be squarely governed under the doctrine of lis pendens. Thus, apprehension of the plaintiff is baseless and he would not suffer any irreparable loss even if the order of injunction is refused.
9. On perusal of the impugned order, it appears that the trial Court has passed an order restraining the opposite parties from alienating the suit property during pendency of the suit, which necessarily implicates that the order of injunction shall remain in force during pendency of the suit unless the same is set aside or modified. Rule 3 empowers the Court to pass an ex parte interim order till a particular date because of exigency in the matter and the Court while passing the ex parte interim injunction records the finding that the object of granting injunction would be defeated by the delay. Hence, the Court should not have restrained the opposite parties from alienating the suit property till disposal of the suit. Such an order, in my view, is not sustainable in the eye of law. Further, the Court before passing an ex parte ad-interim order 9 of injunction should always keep in mind that all the three ingredients for grant of the order of injunction are satisfied in the case. When one of the ingredients as discussed above is not satisfied, the plaintiff is not entitled to the relief of injunction.
10. In that view of the matter, the impugned order is set aside. The FAO is accordingly allowed, but in the circumstances, there will be no order as to cost.
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K.R. Mohapatra, J.
Orissa High Court, Cuttack Dated the 10th July, 2015/bks/ss