Orissa High Court
CMP/1230/2017 on 28 June, 2018
Author: Biswanath Rath
Bench: Biswanath Rath
C.M.P. No.1230 of 2017
5. 28.06.2018 Heard Miss. D. Mahapatra, learned counsel for the
petitioner and Shri B. Tripathy, learned counsel for the
opposite party no.2.
This matter involves a challenge to the impugned
order passed by the District Judge, Khurda in F.A.O.
No.53 of 2017, which appears to have been allowed in
favour of the private opposite parties under the
observation that since the appeal lies under Order 43
Rule 1 against an order of status quo arising out of an
application under Order 39 Rules 1 & 2, no application
under Order 39 Rule 4 of the C.P.C. is maintainable.
Short background involved in this matter is, on the
entertainment of a suit, notice was issued involving an
application under order 39 Rules 1 & 2 of the C.P.C. The
I.A. No.2 of 2017 was posted to 3.04.2017 fixing the date
of appearance. As the Bar was on strike on 3.04.2017, no
steps was taken by the petitioner and the matter was suo
motu adjourned to 10.05.2017 for S.R. & P.A. On which
date, the Advocate for the petitioner filed a 'Vakalatnama'
along with a petition for time. For the non-availability of
the case record, the case could not be taken up on the
said date. It is pleaded that the Advocate remained on
consideration that the case would be taken up on
10.05.2017. In the meantime, it is alleged that the case
has been preponed to 10.04.2017 instead of being taken
up on 10.05.2017 and after 3, 4 dates thereafter, the I.A.
was finally concluded by an order of status quo dated
6.05.2017. Assailing the order dated 6.05.2017 the
present petitioner moved an application under Order 39
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Rule 4 of C.P.C. on the premises that even though the
petitioner had appeared and filed 'Vakalatnama' on
3.04.2017 but for the preponment of the matter from
10.05.2017 to 10.04.2017, the petitioner had no notice.
Taking aid of the first proviso of Order 39 Rules 1 & 2 on
being passed without notice on the preponed date, the
case comes under Order 39 Rule 4 and therefore, a
prayer is made for variation of the order passed involving
the application under Order 39 Rules 1 & 2 and for
rehearing of the same.
On contest of the opposite parties, the trial court
on consideration of the submissions of the parties and
materials available on record including the case diary and
on verification of the cause list maintained by the Court
Master and the order sheet the trial court has formed an
opinion that the case involves a preponment of the case
and under the circumstance, the provision of Order 39
Rule 4 being applied, allowed the application at the
instance of the present petitioner. On appeal by the
opposite parties, the appellate authority considering the
rival contentions of the parties allowed the appeal on the
premises that there is no application of Order 39 Rule 4
of C.P.C., as the petitioner had already appeared in the
Order 39 Rule 1 & 2 proceeding.
Learned counsel for the petitioner taking this Court
to the preponment of the case and a clear finding by the
trial court, further taking this Court to the provisions
contained in the Order 39 Rule 4 of C.P.C. contended that
the petitioner has a case under Order 39 Rule 4 of C.P.C.,
on the other hand, learned counsel for the opposite
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parties on the plea that the petitioner has already
appeared pursuant to the Order 39 Rules 1 & 2 notice,
claimed that this is not a case of no notice and hence
contended that, there is no application of the provision
under Order 39 Rule 4 C.P.C. to the case at hand.
Considering the rival contentions of the parties,
this Court considering the facts involving the case and
the findings of the trial court finds, it is a case of
preponment of a case, which findings has also not been
followed by the appellate authority. Considering that this
is a case of preponment, it is at this stage, this Court
takes into account the provision contained in Order 39
Rule 4 of C.P.C., which reads as follows:
"4. Order for injunction may be discharged,
varies or set aside - Any order for an
injunction may be discharged, or varies, or set
aside by the Court, on application made thereto by
any party dissatisfied with such order.:
[Provided that if in an application for
temporary injunction or in any affidavit supporting
such application, a party ahs knowingly made a
false or misleading statement in relation to a
material particularly 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 interests of
justice.:
Provided further that where an order for
injunction has been passed after giving to a party
an opportunity of being heard, the order shall not
to" discharged, varied or set aside on the
application of that party except where such
discharge, variation or setting aside has been
necessitated by a change in the circumstances, or
unless the Court is satisfied that the order has
caused undue hardship to that party.]
Reading of the above, it becomes clear that the
Statute has purportedly made a provision for variation of
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the orders involving Order 39 Rules 1 & 2 of C.P.C. in
atleast not less two conditions. 2nd of which, in the event,
an injunction order is granted without giving notice to the
opposite parties, considering that it is a case of
preponment, this Court finds, there was no notice to the
opposite parties therein. The petitioner herein of the
preponment of the dates, finds, the application under
Order 39 Rule 4 of C.P.C. was very much maintainable.
For the appellate authority's dismissing the appeal on the
ground of maintainability, this Court interfering in the
appellate order, sets aside the same and remits the
matter back to the lower appellate authority for
reconsideration of the appeal on its own merit, but
involving both the parties.
Since the matter is decided in presence of both the
parties, both the parties are directed to appear before the
lower appellate court on 4th of July, 2018 along with
certified copy of this order.
The civil miscellaneous petition stands disposed of
with the above direction.
Issue urgent certified copy on proper application.
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(Biswanath Rath, J.) Ayas 5