Madras High Court
Srinivasan vs Baby on 1 July, 2022
Author: R.N.Manjula
Bench: R.N.Manjula
C.R.P(PD).No.2005 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.07.2022
CORAM :
THE HONOURABLE MS. JUSTICE R.N.MANJULA
C.R.P(PD).No.2005 of 2022
and C.M.P.No.10277 of 2022
Srinivasan ... Petitioner
Vs
Baby ... Respondent
Prayer:- Civil Revision Petition is filed under Article 227 of Constitution of
India, pleased to set aside the order dated 06.06.2022 in I.A.No.2 of 2021 in
I.A.No.1548 of 2018 in O.S.No.371 of 2018 on the file of the Principal District
Munsif Judge at Pollachi.
For Petitioner : Mr.K.Myilsamy
ORDER
This Civil Revision Petition has been preferred challenging the order of the learned Principal District Munsif, Pollachi, dated 06.06.2022 made in I.A.No.2 of 2021 in I.A.No.1548 of 2018 in O.S.No.371 of 2018.
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2. The revision petitioner is the plaintiff in the suit, which has been filed for permanent injunction against the respondent. During the pendency of the proceedings, an interlocutory application was also filed in I.A.No.1548 of 2018 for seeking temporary injunction. Even, at the time, when the temporary injunction petition was moved and the interim injunction was granted on 12.11.2018 and thereafter, the interim injunction was ordered to be extended for each and every hearing along with the orders to file counter by the respondent.
3. On 04.03.2021, since, the counter was not filed, the respondent was set ex-parte and the petition was allowed and thereby, the interim injunction already granted was made absolute. Subsequently, the defendant filed a petition in I.A.No.2 of 2021 to set aside the ex-parte order dated 04.03.2021 and the same was allowed. Aggrieved over that, the plaintiff has filed this Civil Revision Petition.
4. The short contention of the learned counsel for the petitioner is that once the injunction order is passed, the proper remedy open to the defendant is to file a petition under Order 39 Rule 4 of C.P.C., for vacating the injunction or to file an Page 2 / 6 https://www.mhc.tn.gov.in/judis C.R.P(PD).No.2005 of 2022 appeal by challenging the said order. In support of his above contention, he also cited a decision rendered in the case of “Shanita Holdings SDN and Ors vs. Shanita Hotel Trichy Pvt. Limited and Ors. Reported in MANU/TN/0469/2009” and the attention of this Court was drawn to the para No.46 in which it is held as under:
“... 46. Where an ex parte interlocutory order is unjust then, appeal is maintainable notwithstanding the remedy available to a party under Order 39 Rule 4 of Civil Procedure Code. In fact, the two remedies are available to a defendant against an order of ex parte injunction; (i) an application under Order 39 Rule 4 of Civil Procedure Code for varying or vacating the order;
(ii) an appeal under Order 43 Rule 1(r); the two remedies are concurrent. In Celin V. Thomas Johnson MANU/KE/0079/2006: AIR2006Ker297, it is observed that 'the remedy available against an order vacating injunction is to file an appeal under Order 43 Rule 1(r) of Civil Procedure Code and not writ petition. Further the trial Court's order ought to be a reasoned one.
Atleast an outline of process reasoning should be there. Needless to say that an unreasoned order may be just, but may not appear to be so to the person affected. Per Page 3 / 6 https://www.mhc.tn.gov.in/judis C.R.P(PD).No.2005 of 2022 contra, a reasoned order will have the appearance of justice...”
5. On 12.11.2018, when the petition was moved for the first time itself, order of the ad interim injunction has been granted ex-parte and notice was ordered to the respondent and after his appearance, at his request, the matter was adjourned to several hearings for filing his counter. Each time when the matter was adjourned, the earlier ad interim injunction was also being extended. But at no point of that time, the respondent has filed any petition to vacate the ad interim injunction which was granted ex-parte on 12.11.2018 and that was being extended from time to time.
6. The Judgment relied upon by the learned counsel for the petitioner speaks about the ex-parte injunction order and it can only about the ad-interim ex-parte order, which was passed in the Suit on 12.11.2018. Thereafter, sufficient time was given for filing counter and due to the default of the respondent/defendant counter was not filed and the petition was allowed. Thereafter, he had chosen to file a petition to set aside the ex-parte order.
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7. Despite the ad-interim order was granted and extended from time to time, when it was made absolute, it was not a speaking order. Since, the said order was passed without the counter of the revision petitioner, he has rightly chosen to file a petition under Order 9 Rule 7. The situation pointed out by the learned counsel for the petitioner would have arisen if the petition was disposed on merits.
8. By setting aside the ex-parte, the position 'ante' is restored, where the ad-interim injunction was being extended. In other words, restoring the petition will not result in vacating the injunction, which was already in force. The only difference is that the order for absolute injunction till the disposal of the suit, can be passed after receiving the counter if any filed by the respondent/defendant and hearing both parties.
9. So, the position pointed out by the civil revision petitioner for filing the petition to vacate the injunction will not arise, since it is a simple order passed due to the default of filing counter. Hence, the remedy available to the petitioner under Order 9 Rule 7 cannot be taken away, by giving different interpretation to this situation in hand. In view of the above, I do not find any factual or legal infirmity Page 5 / 6 https://www.mhc.tn.gov.in/judis C.R.P(PD).No.2005 of 2022 R.N.MANJULA, J.
rgi in the order of the learned Principal District Munsif, Pollachi, dated 06.06.2022 made in I.A.No.2 of 2021 in I.A.No.1548 of 2018 in O.S.No.371 of 2018 and it does not require any interference.
10. In the result, this Civil Revision Petition stands dismissed and the order of the learned Principal District Munsif, Pollachi, dated 06.06.2022 made in I.A.No.2 of 2021 in I.A.No.1548 of 2018 in O.S.No.371 of 2018 is confirmed. Consequently, the connected Miscellaneous Petition is also closed. No costs.
01.07.2022
rgi
Index : Yes
Internet : Yes
Speaking Order
To
1. The Principal District Munsif,
Pollachi.
2. The Section Officer,
VR Section, Madras High Court,
Chennai.
C.R.P(PD).No.2005 of 2022
and C.M.P.No.10277 of 2022
Page 6 / 6
https://www.mhc.tn.gov.in/judis