Rajasthan High Court - Jodhpur
Jagdish Singh vs . Amba Lal & Ors. on 19 December, 2014
Equivalent citations: AIR 2015 (NOC) 839 (RAJ.), 2015 AIR CC 1395 (RAJ) (2015) 3 RAJ LW 2711, (2015) 3 RAJ LW 2711
Author: P.K. Lohra
Bench: P.K. Lohra
[1]
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
Jagdish Singh Vs. Amba Lal & Ors.
S.B. CIVIL MISC. APPEAL NO. 1855/2014
Date of Judgment: December 19, 2014.
PRESENT
HON'BLE MR. JUSTICE P.K. LOHRA, J.
Mr. Vinay Jain, for the appellant.
Mr. S.L. Jain, for respondent No.1 Caveator.
BY THE COURT:
Appellant-defendant has laid this appeal under Order 43 Rule 1 (r) read with Section 104 of the Code of Civil Procedure, 1908 (for short, 'CPC') being aggrieved by the order dated 10th of September 2014 passed by Additional District Judge, Jaitaran, District Pali (for short, 'learned trial Court').
By the order impugned, learned Court below has directed respondent No.2 to 4 to maintain status quo [2] regarding the land records and further restrained respondent No.5 from taking any further action in the matter. The complete text of the order reads as under:
10-09-2014 odhy izkFkhZ Jh ,y- ,u-
fllksfn;k mi-A vizkFkhZ la- ,d dk uksVhl vne rkehy ykSVkA iqu% ih-, Q- uksVhl iss'k gksus ij rych tkjh gksA vizkFkhZx.k la 2 ls 4 dh rjQ ls ,-
Mh-Mh- ih-ih- Jh vkdkjke Vkad mi-A vizkFkhZ la 5 dh rjQ ls uxj ikfydk lkstr ds vf/koDrk Jh pUns'ks [kj Jhekyh mi-A tokc iss'k djus gsrw ekSdk pkgkA ;FkkfLFkfr ij lquk x;kA vizkFkhZx.k la 2 ls 4 dks jktLo jsdMZ dh ;
FkkfLFkfr cuk;s j[kus gsrw o vizkFkhZ la[;k 6 dks fu;eu dh dk;Zokgh vkxkeh iss'kh rd u fd;s tkus ckcr ikcan fd;k tkrk gSA i=koyh okLrs iss'k gksus tokc vizkFkhZ la-2 ls 5 o voyksdu rkehy vizkFkhZ ,d gsrw fnukad 30-09- 2014 dks is'k gksA vij ftyk U;k;k/khs'k tSrkj.k] ftyk ikyh ¼jkt-½ [3] The order impugned, quoted hereinabove, is passed by the learned trial Court on an application under Order 39 Rule 1 & 2 CPC in a suit for specific performance of contract filed by respondent-plaintiff with the relief of perpetual injunction restraining appellant-defendant from alienating the property in question by execution of a registered instrument of transfer.
Learned counsel for appellant, Mr. Vinay Jain, submits that at the threshold on 9th of September 2014 the learned Court below issued notices of the application for temporary injunction to all the defendants including the appellant and posted the matter for 10th of September 2014, and on 10th of September 2014 admittedly the notices were not served on the appellant yet the learned Court below has passed the above quoted impugned order which is not sustainable. Mr. Vinay Jain submits that once the Court has issued notices, it was desirable from the learned Court below to have passed order adversely affecting the appellant after service of notice and by not doing so the learned Court below has committed grave and serious error of law in exercise of its jurisdiction. Lastly, Mr. Vinay Jain submits that the [4] order impugned speak volumes about the fact that learned trial Court has not at all considered the necessary ingredients for grant of temporary injunction before passing the ex-parte temporary injunction order. In support of his contentions, learned counsel has placed reliance on a decision of Hon'ble Apex Court in case of Ramrameshwari Devi & Ors. Vs. Nirmala Devi & Ors. [(2011) 8 SCC 249], wherein Court held:
44. Usually the court should be cautious and extremely careful while granting ex parte ad interim injunctions. The better course for the court is to give a short notice and in some cases even dasti notice, hear both the parties and then pass suitable bipartite orders. Experience reveals that ex parte interim injunction orders in some cases can create havoc and getting them vacated or modified in our existing judicial system is a nightmare. Therefore, as a rule, the court should grant interim injunction or stay order only after hearing the defendants or the respondents and in case the court has to grant ex parte injunction in exceptional cases then while granting injunction it must record in the order that if the suit is eventually dismissed, the plaintiff or the petitioner will have to pay full restitution, actual or realistic costs and mesne profits.
Per contra, Mr. S.L. Jain, learned counsel for the respondent-plaintiff submits that appeal as such against the ex-parte interim injunction order is not [5] maintainable. Reliance in this behalf is placed on decision of Himachal Pradesh High Court Pritam Singh & Ors. Vs. Charan Dass Dogra & Ors. (AIR 1973 Himachal Pradesh
90) and Madras High Court in Abdul Shukoor Sahib Vs. Umachander & Ors. (AIR 1976 Madras 350). Mr. S.L. Jain submits that the learned Court below in its discretion has passed the ex-parte injunction order, which can be contested by the appellant-defendant by filing his reply and at this stage no interference with the impugned order is desirable. Learned counsel for the respondent further submits that as a matter of fact no restraining order has been passed against the appellant and the effect of the order is that other respondents have been restrained from taking any further action, therefore, grievance of the appellant against the impugned order is wholly misplaced and the appellant is liable to be non-suited.
I have heard learned counsel for the parties and perused the impugned order.
Before examining the impugned order on merits, it is desirable to consider the preliminary objection of the respondent-plaintiff regarding maintainability of the appeal against ex-parte interim injunction order. The legal position is no more res- [6] integra that order granting or refusing temporary injunction under Order 39 Rule 1 & 2 CPC is appealable under Order 43 Rule 1(r) CPC. A bare perusal of the impugned order makes it abundantly clear that by the said order injunctory relief has been granted ex-parte against the appellant-defendant. True it is that appellant was well within his right to contest the matter before the learned trial Court against the grant of temporary injunction but the proposition canvassed by the learned counsel for the respondent that order is not appealable is per-se not tenable. Any order of temporary injunction, may be ex-parte, granted by a civil Court under Order 39 Rule 1 & 2 CPC, an aggrieved party has got right to avail remedy of appeal under Order 43 Rule 1 (r) CPC.
Hon'ble Supreme Court, in A. Venkatasubbiah Naidu Vs. S. Challappan & Ors. (AIR 2000 SC 3032), while examining the scope of Order 43 Rule 1 CPC, has held that appeal against ex-parte temporary injunction is maintainable. The Court held:
"It cannot be contended that th e 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 fur- ther orders or till the disposal of the suit.[7]
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."
This Court, in case of Ram Swaroop Vs. State of Rajasthan & Ors. [2013 (4) WLN 8], while relying on the decision of Hon'ble Apex Court in A. Venkatasubbiah Naidu (supra), has reiterated the same principle.
The Full Bench of Gauhati High Court, in case of Akmal Ali & Ors. Vs. State of Assam & Ors. (AIR 1984 Gauhati 86), held as under:
"As alluded, even an ex parte ad interim order rendered under Rule 1 or 2 of Order 39 is an order falling within the purview of Order 43, Rule 1(r). Orders rendered un- der Rules 1 and 2 of Order 39 have been designated as orders appealable under Or- der 43, Rule 1(r) and, as such we are not to look at Section 2(9) or Section 2(14) of 'the Code'. Section 2 of 'the Code' clearly states that the definition should be under- stood in the manner stated in Section 2 "unless there is anything repugnant in the subject or context". If there is any repug- nancy in Order 43, Rule 1(r) read with Or- der 39, Rules 1 and 2, the meaning of the term 'order' should be understood as set out in those provisions and definition need not be resorted to. That apart any order rendered under Order 39, Rule 1 or 2 is a formal expression of the decision arrived at by the Civil Court relating to granting of ad [8] interim injunction. How could a court in- junct a party without deciding whether to grant it or not. Form No.8 of Appendix F to the Civil P. C., 1908, clearly shows the manner in which the formal expression of the decision is required to be made. Fur- ther, to say that reasons must find place in an order to be regarded as a decision would land the litigants in great difficulty, as, one word 'Dismissed' would then not be 'Order- s'. Such a proposition cannot be accepted. It is a different matter that all orders, inter- im or final, should contain reasons. But to regard all non-speaking disposals as not even 'orders' of the appropriate authorities would create stalemate, as, such disposals might then become non-appealable or non- revisable, even under the relevant statutory provisions.
For the reasons aforesaid, we hold that an appeal lies under Order 43, Rule 1(r) of 'the Code' against an ex parte order of ad interim injunction passed under Rules 1 and
2 of Order 39. In our opinion this is the an- swer to the question posed before us."
After decision of Hon'ble Apex Court in A. Venkatasubbiah Naidu (supra), it is not necessary to deal with the legal precedents on which learned counsel for the respondent has placed reliance.
In this view of the matter, the preliminary objection of the respondent regarding maintainability of appeal is not at all sustainable and same is hereby overruled.
[9]
Now adverting to the merits of the case, suffice it to observe that from the tenor of the order it is crystal clear that as a matter of fact the learned trial Court was pre-determined to pass restraining order and that is why it has recorded that parties are heard for grant of the order of status quo. This sort of approach of the learned Court below is absolutely casual in the matter of grant of temporary injunction. My this view finds support from the decision of Hon'ble Apex Court in case of A. Venkatasubbiah Naidu (supra). It is trite that granting temporary injunction is a very serious matter, may it be ex-parte, and it is necessary for the Court to record its prima facie satisfaction about requisite ingredients for grant of temporary injunction. Moreover, once the Court has issued notices to the defendants, it was very much desirable from the Court below to have waited for service of notice on parties before passing injunction order. Submission of the learned counsel for the respondent, that by the order impugned there is no restraint against the appellant, is per-se misplaced. On the face of it, the impugned order appears to be innocuous but its adverse effect on appellant-defendant is clearly apparent inasmuch as it amounts to restraining order against him. By restraining respondent No.2 to 4 [10] from making necessary entries in the revenue record, and respondent No.5 from taking any action for regularization of such proceedings, the learned Court below has passed an order whereby civil rights of the appellant have been put to jeopardy without hearing him. In totality of circumstances, skeptical approach of the learned Court below in passing the impugned order is clearly discernible and the same has rendered it all the more vulnerable. A civil Court, while exercising its power to grant temporary injunction, is expected to be more cautious and such jurisdiction is not to be exercised in an absolutely casual and cavalier manner. By passing the ex-parte temporary injunction order without service of notice on the appellant, the learned Court below has exercised its jurisdiction capriciously, unreasonably and against the prescribed cannons of justice which requires interference in exercise of appellate jurisdiction of this Court. Therefore, in totality, the impugned order cannot be sustained.
Resultantly, the instant appeal is allowed, impugned order dated 10th of September 2014 passed by Additional District Judge, Jaitaran, District Pali is quashed and set aside. In the peculiar facts and circumstances of [11] the case, the learned trial Court is directed to decide the application of the respondent-plaintiff for temporary injunction as expeditiously as possible, preferably within a period of one month from the date of receipt of certified copy of this order.
(P.K. LOHRA), J.
arora/