Gujarat High Court
Tulsi Asscociates & vs Shriji Corporation & 2 on 27 June, 2016
Author: A.G.Uraizee
Bench: A.G.Uraizee
C/AO/188/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 188 of 2016
With
CIVIL APPLICATION NO. 5358 of 2016
In
APPEAL FROM ORDER NO. 188 of 2016
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TULSI ASSCOCIATES & 1....Appellant(s)
Versus
SHRIJI CORPORATION & 2....Respondent(s)
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Appearance:
MR RD DAVE, ADVOCATE for the Appellant(s) No. 1 - 2
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MR MEHUL S SHAH, ADVOCATE for the Respondent(s) No. 3
MR MIHIR THAKORE, SR ADVOCATE ASSISTED BY MR NILESH A PANDYA,
ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 27/06/2016
ORAL ORDER
1. The present appeal from order is preferred to question the legality and validity of order dated 16.06.2016, passed by the learned Additional Senior Civil Judge, Vadodara, below Exhibit5 in Special Civil Suit No.229 of 2016, whereby the appellants who are original defendants are directed to maintain status quo by way of an ex parte ad interim injunction.
2. The matter was argued at length at the admission stage, and therefore, by consent of the learned counsels for the parties, the appeal is Page 1 of 22 HC-NIC Page 1 of 22 Created On Sat Jul 02 00:50:22 IST 2016 C/AO/188/2016 ORDER decided finally at the admission stage.
3. The background facts are necessary for disposal of this appeal are that the respondent No.1 is a partnership firm, whereas respondent No.2 is the partner of respondent No.1 partnership firm. The respondent No.3 executed an agreement to sale on 09.12.2005, in favour of respondent No.1 for the land admeasuring 2770 sq. meter bearing survey No.59, final plot No.228 in TP Scheme No.18 situated at village Manjalpur, Vadodara ('Suit property' for short). A separate possession receipt dated 10.12.2005 was also executed by the respondent No.3 in favour of the respondent No.1. The agreement to sale which was executed by the respondent No.3 in favour of respondent No.1 was an unregistered document.
4. On 09.02.2006, the present respondent No.1 executed an agreement to sale in favour of the present appellants, and also executed possession receipt of the even date, in favour of the appellants. Thereafter, the present appellants who are the original defendant Nos. 2 and 3 before the learned trial Court purchased the suit land from respondent No.3 by registered sale deed dated 04.02.2016.
5. According to the appellants, they submitted plans to the municipal authorities after the sale Page 2 of 22 HC-NIC Page 2 of 22 Created On Sat Jul 02 00:50:22 IST 2016 C/AO/188/2016 ORDER deed was executed, as aforesaid, and the appropriate authority has sanctioned development plans submitted by the appellants. Pursuant to such development permission, the appellants have started construction work on the suit premises. The respondent Nos. 1 and 2, thereafter, filed a Suit being Special Civil Suit No.229 of 2016 on 16.06.2016, for a declaration and injunction restraining the present appellants from disturbing or obstructing the possession of the respondent Nos. 1 and 2 in the suit premises through their servants, agents etc. and also restraining them from transferring or assigning or creating encumbrance on the suit premises, and from carrying out any kind of construction activities, thereon. Respondent Nos. 1 and 2 in the suit also preferred an application exhibit5 under Order 39 Rule (1) and (2) of the Code of Civil Procedure, 1908 ("the code" for short) for temporary injunction, restraining the present appellants from transferring or creating any third party interest or making any construction on the suit land during the pendency of the suit. The learned trial judge by the impugned order dated 16.06.2016 by way of ex parte ad interim injunction directed the appellants as well as respondents i.e. both parties to the suit to maintain status quo in respect of the suit property till the hearing of the exhibit5 Page 3 of 22 HC-NIC Page 3 of 22 Created On Sat Jul 02 00:50:22 IST 2016 C/AO/188/2016 ORDER application. The appellants, original defendant Nos. 1 and 2 being aggrieved by this ex parte ad interim injunction has move this Court by filing this appeal.
6. I have heard Mr. R.D. Dave, learned advocate for the appellants, Mr. Mihir Thakor, learned senior counsel assisted by Mr. Nilesh N. Pandya, learned advocate for respondent Nos. 1 and 2, Mr. Mehul Shah, learned advocate for respondent No.3.
7. Mr. Dave, learned advocate for the appellants has questioned the impugned order of the learned trial judge. It is his contention that the learned trial judge has granted ex parte ad interim injunction against the present appellants in violation of provisions of Rule 3 of Order 39. It is his contention that the provisions of Rule 3 of Order 39 are mandatory, and before passing the ex parte ad interim injunction, it is incumbent upon the Court to record special reasons as to why the ex parte ad interim injunction is warranted in the case. It is his further contention that the respondent Nos. 1 and 2 (original plaintiffs) have not pleaded that the facts and circumstances are such that an ex parte ad interim injunction is warranted in the case. He, therefore, submits that the learned trial judge committed a serious error in granting the Page 4 of 22 HC-NIC Page 4 of 22 Created On Sat Jul 02 00:50:22 IST 2016 C/AO/188/2016 ORDER ex parte ad interim injunction, whereby, the construction activities going on at the suit premises. He has further urged that the learned trial judge has not considered the documentary evidence produced by the respondent Nos. 1 and 2, which prima facie shows that the appellants are in possession of the suit premises, while granting an ex parte ad interim injunction. It is his further contention that the impugned order of the learned trial judge suffers from the lack of jurisdiction inasmuch as the dispute between the appellants and respondent Nos.1 and 2 is commercial dispute in view of Section 2(c) (i)
(vi) (vii) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. He has also relied upon the Sport Inspection Report prepared by the Court Commissioner, addressed his submission, the appellants are in possession of the suit premises. It is his further contention that the suit filed by the respondent (original plaintiff) is also barred by limitation, and therefore, according to him, the learned judge ought not to have granted an ex parte ad interim injunction against the appellants. He, therefore, urges that the impugned order, directing the appellants to maintain status quo till the disposal of the exhibit5 application may be quashed and set aside.
Page 5 of 22HC-NIC Page 5 of 22 Created On Sat Jul 02 00:50:22 IST 2016 C/AO/188/2016 ORDER
8. Mr. Mihir Thakore, learned senior counsel for respondent No.1 and 2 vehemently opposed this appeal and submits that a bare reading of the provisions of Section 2(c) of the Commercial Courts Act and the transaction which has taken place between the appellants and the respondents would not bring the dispute within the sweep of "commercial dispute". He submits that the suit filed by the plaintiffs is not hit by the limitation inasmuch as Article 54 of the Limitation Act makes it clear that ordinarily suit for specific performance of contract has to be filed within three years fixed for the purpose of contract, and if, no such date is fixed, the suit has to be filed by the plaintiff within three years from the date of any knowledge that the performance is refused. Relying upon the decision of the Supreme Court in the case of Tayabbhai M. Bagasarwalla and another v. Hind Rubber Industries Pvt. Ltd., reported in (1997) 3 SCC 443, he submits that where an objection to jurisdiction of a civil court is raised to entertain a suit and to pass any interim orders therein, the Court should decide the question of jurisdiction in the first instance but that does not mean that pending the decision on the question of jurisdiction, the court has not jurisdiction to pass interim orders as may be Page 6 of 22 HC-NIC Page 6 of 22 Created On Sat Jul 02 00:50:22 IST 2016 C/AO/188/2016 ORDER deemed fit in the facts and circumstances of the case. It is his contention that though the Rule 3 of Order 39 are mandatory. It is not necessary for the Court passing an ex parte ad interim injunction to say in so many words that the facts of the case are such that an ex parte ad interim injunction is warranted. According to his submission, by reading the order of the Court below as a whole the Court can very well ascertain that the Court was alive to the fact that the urgent ex parte ad interim injunction was required. In support of this submission, he has placed reliance on the Supreme Court's decision in the case of State of West Bengal and others v. Scene Screen (Pvt.) Ltd. and another, reported in (2000) 7 SCC 686, in paragraph Nos. 13 and 15. So far as the contention regarding the appellants having been put in possession by virtue of possession receipt is concerned, he submits that he does not dispute the execution of this receipt, but he submits that pursuant to the execution of the possession receipt, the appellants were not put in possession of the suit premises. According to his submission in suit for specific performance consequential reliefs are not required to be prayed as contemplated under Section 34 of the Specific Reliefs Act, 1963. In support of this contention reliance is placed on Page 7 of 22 HC-NIC Page 7 of 22 Created On Sat Jul 02 00:50:22 IST 2016 C/AO/188/2016 ORDER the decision of the Supreme Court in the case of Durga Prasad and another v. Deep Chand and others, reported in AIR 1954 SC 75, wherein, in paragraph No. 42, is observed that the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. Relying upon a decision of this Court in the case of Patel Jasmat Sangaji v. Gujarat Electricity Board, reported in 1982 (2) GLR 104 and in the case of M/s. Sun Pharmaceutical Industries v. CIBA Geigy Ltd. and another, reported in 1992 (2) GLR 1049, he contends that though the appeals against grant of ex parte ad interim injunction application is maintainable, such appeal be entertained in the rarest of rare cases. He, therefore, submits that the order of the trial Court does not suffer from any illegality or perversity, and therefore, the appeal from order may be dismissed. In the alternative, he submits that the impugned order of status quo granted by the trial Court against the appellants may be continued, and the trial Court may be directed to dispose of the exhibit5 Page 8 of 22 HC-NIC Page 8 of 22 Created On Sat Jul 02 00:50:22 IST 2016 C/AO/188/2016 ORDER application within time limit fixed by this Court.
9. Mr. Mehul Shah, learned advocate for the respondent No.3 submits that the learned trial judge has committed an error inasmuch as the provisions of Rule 3 of Order 39 are not followed before granting ex parte ad interim injunction. He submits that there are no averments in the plaint that the delay in granting injunction would defeat or frustrate the object of the injunction application. It is his further contention that there is no prayer in the exhibit5 application for grant of ex parte ad interim injunction. In the earlier litigation between the Samir Builders and the respondent No.1, First Appeal No.1719 of 2015 is pending in this Court, wherein also no injunction is granted. In support of this contention, he has relied upon a decision of the Supreme Court in the case of Morgan Stanley Mutual Fund v. Kartick Das with Dr. Arvind Gupta V. Securities and Exchange Board of India and others, reported in (1994) 4 SCC 225, and a decision of this Court in the case of Tecnimont I.C.B. Pvt. Ltd. v. Afcons Infrastructure Ltd. and others, reported in 2014 (1) GLR 470. He further contended that the basic principles as to grant of ex parte ad interim injunction are given complete goby by the Page 9 of 22 HC-NIC Page 9 of 22 Created On Sat Jul 02 00:50:22 IST 2016 C/AO/188/2016 ORDER learned trial judge, and therefore, the impugned order of ex parte ad interim injunction cannot be permitted to be operated any further. He further urges that Section 34 of Specific Relief Act requires that all consequential reliefs should be made in the suit, and if, the consequential reliefs are not prayed, suit would not be maintainable. According to his submission, in the present case, the respondent Nos. 1 and 2 have not prayed to set aside or cancel the sale deed which is executed between them and Samir Builders. In support of this Contention, he has placed reliance in the decision of the Supreme Court in the case of Venkataraja and others v. Vidyane Doureradjaperumal, reported in 2014 (14) SCC 502. So far as the jurisdiction of the trial Court to entertain the suit is concerned, he has submitted that as an argument made by Mr. Dave, learned advocate for the appellants that in view of the provisions of Section 2 of the Commercial Courts Act, the trial Courts have no jurisdiction, and therefore, if the Courts have no jurisdiction to entertain the suit, the interim injunction alive and injunction can be granted. In support of this submission, he relied upon a decision of the Supreme Court in the case of Shree Subhlaxmi Fabrics (P) Ltd. V. Chand Mal Baradia and others, reported in 2005 (10) SCC Page 10 of 22 HC-NIC Page 10 of 22 Created On Sat Jul 02 00:50:22 IST 2016 C/AO/188/2016 ORDER 704, para20 and in the case of Bank of Maharashtra v. Race Shipping and Transport Co. Pvt. Ltd., reported in AIR 1995 SC 1368. Therefore, he submits that the order of ex parte ad interim injunction, passed by the leaned trial judge is ex facie deserves to be set aside, and the parties should be relegated to the trial Court for deciding the exhibit5 application.
10. Mr. Mihir Thakore, learned senior counsel appearing for the respondent Nos. 1 and 2 original plaintiffs has vehemently opposed the present appeal and submitted that the provisions of Section 2 (6) (7) of the Commercial Courts Act are not applicable to the facts of the present case. In support of his submission, in any case this issue is debatable and questionable as there is nothing to show that the suit land is used exclusively for trade and commerce. So far as the applicability of section 34 of Specific Reliefs Act is concerned he submits that in the suit for specific performance, consequential reliefs are not required to be prayed. He has relied upon a decision of the Supreme Court in the case of Durga Prasad and another v. Deep Chand and others, reported in AIR 1954 SC 75. The Courts can appropriately mould the relief/decree by asking the party in whose favour the sale deed is made, and therefore, to be canceled to make a Page 11 of 22 HC-NIC Page 11 of 22 Created On Sat Jul 02 00:50:22 IST 2016 C/AO/188/2016 ORDER consent or confirming parties so that the decree can be executed. It is his submission that the appellants have shown unnecessary haste in approaching this Court by the present appeal, when they had a remedy available under Order 39 Rule 4 to approach the trial Court for vacating the interim relief, and therefore, he urges that the appeal from order not lacks of merits. So far as the objection that the suit preferred by the respondent Nos. 1 and 2 is barred by limitation is concerned, Mr. Thakore, learned senior counsel submits that the earlier litigation between Samir Builders and respondent Nos. 1 and 2, injunction application was dismissed by the trial Court in the year 2006 against which an appeal was preferred in this Court, which came to be dismissed on 24.12.2013, and interim relief was vacated. Thereafter, the suit came to be dismissed on 03.08.2015 against which the First Appeal is pending in this Court, but no interim relief is granted, and therefore, he submits that it cannot be said that the suit filed by the respondent Nos. 1 and 2 suffers from the vice of limitation. He, therefore, submits that this appeal from order will be dismissed and parties may be relegated to the trial Court with a direction to the trial Court to decide the exhibit5 application within stipulated time line. In rejoinder, Mr. Dave, learned advocate Page 12 of 22 HC-NIC Page 12 of 22 Created On Sat Jul 02 00:50:22 IST 2016 C/AO/188/2016 ORDER for the appellants submits that though in earlier suit between the respondent Nos. 1 and 2 and Samir Builders there was no interim relief in the form of stay, the respondent Nos. 1 and 2 by virtue of that stay were not restrained from instituting the suit against the present appellants, and therefore, according to his submission in view of Sections 9 and 15 and Article 54 of the Limitations Act, the suit instituted by the respondent Nos. 1 and 2 is within the period of limitation.
11. Mr. Shah, learned advocate for the respondent No.3 in rejoinder submits that in view of the decision of the Supreme Court in the case of Dalpat Kumar and another v. Prahlad Singh and others, reported in AIR 1993 SC 276 the basic parameters of granting to the party herein are also required to be kept in mind.
12. The elaborate arguments are canvassed and in my opinion except the arguments as regards the noncompliance of provisions of Rule 3 of Order 39, other arguments touch the merit of the suit. Since the application exhibit5 is still at large before the trial Court as the appellant has approached this Court against an ex parte ad interim injunction, I am of the view that touching other arguments would affect the merits Page 13 of 22 HC-NIC Page 13 of 22 Created On Sat Jul 02 00:50:22 IST 2016 C/AO/188/2016 ORDER of the suit and exhibit5 application adversely, and prejudicial to the interest of either party, I, therefore, though expedient not to go into the arguments which touches the merit of the suit and the exhibit5 application, and the sole issue as regards the non compliance of Rule 3 of Order 39 needs to be considered in this appeal.
13. Rule 3 of order 39 reads as under: "3. Before granting injunction, Court to direct notice to opposite party.The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:
[Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant
(a) to deliver the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with
(i) a copy of the affidavit filed in support of the application;
(ii) a copy of the palint; and
(iii) copies of documents on which the applicant relies, and
(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit Page 14 of 22 HC-NIC Page 14 of 22 Created On Sat Jul 02 00:50:22 IST 2016 C/AO/188/2016 ORDER stating that the copies aforesaid have been so delivered or sent.]"
14. This Court in the case of Tecnimont I.C.B. Pvt. Ltd. v. Afcons Infrastructure Ltd. and others reported in 2014 (1) GLR 470 after considering the various decisions of the Supreme Court, this Court and another High Courts, it is as under in para 31: "31. Order 39, Rule 3 C.P.C. is not complied with in the present case. It is held to be mandatory by this Court in the above referred cases. In the present case, there is nothing on record to show that issuance of notice would have weakened the case of the respondent or would have caused prejudice to him. To issue notice is a rule and to issue injunction without issuance of notice is an exception which is to be resorted to in a case where the court would find that the object of granting injunction would be defeated by delay. In the present case, it is not possible to say that if the Court had issued showcause notice, then the other side would have so altered the position by that time that it would have defeated or frustrated the object."
15. The Supreme Court in the case of Morgan Stanley Mutual Fund v. Kartick Das with Dr. Arvind Gupta V. Securities and Exchange Board of India and others reported in 1994 (4) SCC 225 has adumbrated factors which should weigh with the Court, particularly, granting ex parte injunction in paragraph No.36 it is observed as under:
"36. As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the court in the grant of ex parte injunction are Page 15 of 22 HC-NIC Page 15 of 22 Created On Sat Jul 02 00:50:22 IST 2016 C/AO/188/2016 ORDER
(a) whether irreparable or serious mischief will ensue to the plaintiff;
(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;
(c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;
(d) the court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction;
(e) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application.
(f) even if granted, the ex parte injunction would be for a limited period of time.
(g) General principle like prima facie case, balance of convenience and irreparable loss would also be considered by the court."
16. The impugned order of the learned trial judge needs to be considered in light of the above stated proposition of law to find out whether the reasons recorded by the learned trial judge in the impugned order clearly suggest that the respondent Nos. 1 and 2 (original plaintiff) have made out the case for grant of ex parte ad interim injunction without issuing notice to the present appellants (original defendant).
17. The perusal of the impugned order shows that the learned trial judge in paragraph No.4 has considered on the basis of the documents produced by defendant Nos. 1 and 2 along with the exhibit Page 16 of 22 HC-NIC Page 16 of 22 Created On Sat Jul 02 00:50:22 IST 2016 C/AO/188/2016 ORDER 5 application that the respondent No.3 executed the registered banakhat in favour of respondent Nos. 1 and 2 (original plaintiff), and moreover, the possession of the suit land to them, therefore, the suit property was subject matter of litigation and Special Civil Suit No.584 of 2005, which suit is finally disposed of by the trial Court against which an appeal is pending in this Court. It is during the pendency of this appeal that the sale deed in favour of the present appellants is executed. It was prima facie, found by the learned trial judge that the respondent Nos. 1 and 2 (original plaintiff) are in possession of the suit land while as the defendant No.1 i.e. present respondent No.3 is the owner of the suit land, who has executed registered sale deed in favour of the appellants, and therefore, according to the learned trial judge three parties namely respondent Nos. 1 and 2 (original plaintiffs), present appellants and respondent No.3 original land owner have got interest in the suit property. He, therefore, thought it expedient to direct all the parties to the suit to maintain status quo in respect of the suit property till the final disposal of the exhibit5 application.
18. The contention of Mr. Dave, learned advocate for the appellants and Mr. Shah, learned advocate Page 17 of 22 HC-NIC Page 17 of 22 Created On Sat Jul 02 00:50:22 IST 2016 C/AO/188/2016 ORDER for the respondent No.3 that despite the respondent Nos.1 and 2 having produced the relevant documents which clearly shows that the sale deed is executed in favour of the present appellants and they were put in possession of the suit property is either ignored and not considered by the learned trial judge, and therefore, according to them, the impugned order suffers from non application of mind apart from the fact that the notice contemplated under Rule 3 of Order 39 is not issued before granting the impugned status quo order.
19. Therefore, in view of the proposition of law espounded by this Court in the case of Tecnimont I.C.B. Pvt. Ltd. (supra) in juxtaposition with Rule 3 of Order 39, this Court has to examine whether the Court below was alive to the fact that if the ex parte injunction is not granted, the object or the purpose of filing the suit and the injunction application would be defeated or frustrated in paragraph No.4 of the impugned order. The Court below has considered the chequered history and considering the fact that the suit land was subject matter of litigation in Special Civil Suit No.548 of 2005 is finally disposed of against which an appeal is pending in this High Court and that there are three parties who stake claim to the suit property, and then Page 18 of 22 HC-NIC Page 18 of 22 Created On Sat Jul 02 00:50:22 IST 2016 C/AO/188/2016 ORDER according to the learned trial judge, the respondent Nos. 1 and 2 being in possession of the suit land the interest of all stake holders in the suit land was required to be protected, and therefore thought it fit to grant ex parte ad interim injunction. It is true that the learned trial judge has not recorded in the impugned order in so many words that if the ex parte ad interim injunction is not granted, the exhibit5 application would be frustrated and therefore, directed all the parties i.e. the respondent Nos. 1 and 2, appellants and also respondent No.3 original land owner to maintain status quo in respect of the suit property till the disposal of exhibit5 application. Now the contention of learned advocate for the appellants that the appellants are put in possession of the suit property by virtue of the possession receipt which was executed on 09.02.2006 on which date the registered sale deed was executed in favour of the present appellants. This possession receipt in clear terms state that the possession of the suit land was hand over to the appellants. Though, this very document was produced on record by the respondent Nos. 1 and 2 (original plaintiff), the learned trial judge has concluded in the impugned order that the possession is with the original plaintiffs i.e. the respondent Nos. 1 and 2. Of course, the impugned order is silent Page 19 of 22 HC-NIC Page 19 of 22 Created On Sat Jul 02 00:50:22 IST 2016 C/AO/188/2016 ORDER on the possession receipt being executed in favour of the appellants, what seems to have been weighed with the learned trial judge is the chequered history of the suit land which is embroiled in litigation inasmuch as the First Appeal in respect of the very suit land is pending in this High Court and according to the learned trial judge there are three stake holders in the suit property. It can be said that though the learned trial judge has not observed in the impugned order that delay in granting the injunction would frustrate the object or the purpose of filing the exhibit5 application, I am of the view that the reasons recorded by the learned trial judge in the impugned order are enough to get an indication that he was alive to the urgency involved in the suit and therefore in my view, considering the overall facts of the case it cannot be said that the non observance of provisions of Rule 3 of Order 39 is fatal and impugned order directing the parties to the suit to maintain status quo requires any interference in this appeal. Still, however, the crucial issue is that the learned trial judge by way of an ex parte ad interim injunction, directed the parties to the suit to maintain status quo till the disposal of the exhibit5 application. Exhibit5 application was filed on 16.06.2016. On that that very date, the ex parte ad interim injunction was Page 20 of 22 HC-NIC Page 20 of 22 Created On Sat Jul 02 00:50:22 IST 2016 C/AO/188/2016 ORDER granted and notice was issued to the appellants which is made returnable on 8th July, 2016, almost, after 21 days. The learned trial judge ought not to have, in my view, in the first place granted an ex parte ad interim injunction till the disposal of the exhibit5 application and secondly, since he has granted ex parte ad interim injunction, long returnable date of around 21 days ought not have been granted. The learned trial judge ought to have made the notice returnable within reasonable date so that the matter could have been heard on merits at the earliest.
20. It is hoped that in future the learned trial judge would keep this fact in mind.
21. In view of the foregoing reasons, the returnable date on 8.07.2016 fixed by the trial Court needs to be advanced to 2.07.2016 on which date all the appellants and the respondent No.3 being one of the defendants shall positively file their reply to the suit in the trial Court. Thereafter, the learned trial Judge shall post the next date of hearing of exhibit5 application to 5.07.2016 on which date the original plaintiff i.e. respondent Nos. 1 and 2 shall file their rejoinder, if any, positively. The learned trial judge, thereafter post the mater on 8.07.2016 for Page 21 of 22 HC-NIC Page 21 of 22 Created On Sat Jul 02 00:50:22 IST 2016 C/AO/188/2016 ORDER hearing of exhibit5 application. It is made clear that on 8.07.2016, the learned trial judge shall not adjourn the hearing of exhibit5 application on any ground, and the learned advocates appearing for the parties shall co operate with the learned trial judge in hearing of exhibit5 application. The learned trial judge, after conclusion of the arguments, shall pronounce the final order on exhibit5 application as early as possible but not latter than 15.07.2016.
22. This appeal from order is disposed of with a modification in the impugned order that the order of status quo granted by the trial Court would be limited till the returnable date, and the trial Court would extend it from time to time upon an application made by the respondent Nos. 1 and 2. It is clarified that this Court has not gone into the merits of the case and the learned trial judge shall decide the exhibit5 application strictly on merits and in accordance with law and uninfluenced by this order. Direct service is permitted.
(A.G.URAIZEE,J) Manoj Page 22 of 22 HC-NIC Page 22 of 22 Created On Sat Jul 02 00:50:22 IST 2016