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Gujarat High Court
Judgename :P.B.MAJMUDAR
KALPATARU LAND DEVELOPMENT PVT.LTD. - Appellant
Versus
JAMNADAS VISHNUBHAI PATEL - Respondent
CIVIL APPLICATION 1501 Of 2007
Decided On : 02/01/2007
Whether grant of status quo without determining prima facie case is sustainable?
Head Note :
Civil Procedure Code, 1908 (Central Act 5 of 1908) - Order 43, 39 and Order 39 Rule 3 - Status quo - Order of - In absence of notice and without determining prima facie case - Sustainability - Finding of - Trial Court without giving notice to defendant appellants while directing the defendants to maintain status quo has specifically observed that order is made without deciding the existence of prima facie case in favour of plaintiff - Court observed that at the time of granting ad-interim injunction without notice to other side the Court is required to state as to whether any prima facie case is made out by the plaintiff and reasons are to be stated - Trial Court on the one hand has stated that Court is not granting ad interim injunction and on the other hand has granted status quo - Court observed that it is required to be borne in mind that status quo is nothing but a sort of injunction and status quo order is required to be granted under Order 39 while considering all the requirement thereunder - It is not the requirement of law that when status quo order is granted the Court is not required to examine prima facie case considering the aforesaid aspect of the matter Court without expressing any opinion on the merits of the case directed the trial Court to decide application of temporary injunction on its merits as per evidence available on record - However, Court suspended the impugned order of status quo till the decision of the said application.
Held :
Trial Judge has observed that, at this stage, she is not passing any order of ex parte injunction but passing an order of status quo. The trial Judge has specifically observed in the order that at this stage, it is not possible to decide whether the plaintiff has got any right in the suit property or whether the defendants have right in the property and in that view of the matter, it would be just and proper to direct the defendants to maintain status quo. It is the requirement of law to point out in the order whether any prima facie case is found in favour of the plaintiff, who has applied for injunction. At the time of granting ad-interim injunction without notice to other side, the Court is required to state as to whether any prima facie case is made out by the plaintiff and reasons are required to be stated as to why ex parte injunction is required to be granted without notice to the other side. On one hand, the trial Judge has stated that the Court is not granting ad-interim injunction and on the other hand, the trial Judge has granted status quo. It is required to be borne in mind that status quo is nothing but a sort of injunction and status quo order is required to be granted under Order 39 of Civil Procedure Code. Status quo and injunction stands on same footing and order of status quo is always to be considered as order of injunction. Even though the trial Judge has observed that order of injunction is not granted, at the same time, order of status quo is granted. The principle enunciated under Order 39 of Civil Procedure Code is applicable even if the Court is willing to grant status quo on its satisfaction that there is some case for it. It is not the requirement of law that when status quo order is granted, the Court is not required to examine prima facie case. [Para 10]
Law Laid Down :
Order to maintain status quo is nothing but a sort of injunction and principles enunciated under Order 39 of the Code are applicable.
Case Law Analysis :
Administrator of Shri Shakti Group, Chandrakant Natverlal Agravat vs. Hargovindbhai Shamjibhai, 34 (1) GLR 434 [Para 11].-Relied on
Conclusion :
Order of status quo made by trial Court without determining the existence of prima facie case is not sustainable.
Decided in Favour of :
Appellant
Appeal Allowed
( 2 ) MR. A. S. VAKIL, learned advocate for the appellant submitted that so far as the present appellant is concerned, he is challenging the order of status quo granted against him and, therefore, it is not necessary to serve other respondents, and he seeks permission to delete the respondents except respondent no. 8 at this stage.
( 3 ) PERMISSION is granted. Names of the respondents, except respondent no. 8, stands deleted from the present proceedings at this stage. With the consent of the parties, this appeal is taken up for final hearing today.
( 4 ) THE appellant herein is the original defendant no. 8 of Special Civil Suit No. 388/2006, pending before Principal Civil Judge (S. D.), Surat. Aforesaid suit is filed by present respondent no. 8 (original plaintiff) against present appellant and other defendants for declaration and permanent injunction. In the aforesaid suit, the plaintiff-respondent no. 8 herein, gave an application at Exh. 5 for interim injunction with a prayer that during the pendency of the suit the defendants may be restrained from disturbing the possession of the plaintiff in connection with the suit property and also to restrain the defendants from transferring or alienating the same in any manner.
( 5 ) BY the impugned order, learned trial Judge granted ad-interim order directing the defendants to maintain status quo till 29-12-2006. It is informed to this Court that the matter is now adjourned to 3rd February, 2007 before the trial Court. It is the aforesaid order granting status quo which is challenged by the appellant by filing this Appeal from Order under Order 43 of the Civil Procedure Code.
( 6 ) MR. A. S. VAKIL, learned advocate for the appellant has vehemently submitted that the learned trial Just should not have granted ad-interim order of status quo and before granting such order, the trial Court should have considered prima facie case and prima facie material. It is submitted by him that the suit is time barred, therefore, before granting order of status quo, the Court should have issued notice, especially when no reasons are given as to why ex-parte ad-interim injunction is required to be granted without notice to other side. Along with appeal memo, the appellant has also produced documentary evidence to substantiate his say that the plaintiff has no prima facie case for getting interim order.
( 7 ) ON the other hand, Mr. S. N. Shelat, learned Senior Counsel assisted by Mr. M. T. M. Hakim appearing for the respondent no. 8 submitted that since the order in question is ex-parte, the trial Court may be directed to decide Exh. 5 application at the earliest and that his client, i. e. , original plaintiff will not ask for any adjournment, so that Exh. 5 application can be decided at the earliest after hearing the concerned parties.
( 8 ) I have heard learned counsels appearing for both the sides and I have also considered prima facie material on record. It is no doubt true that normally mandate of Order 39 is required to be followed by issuing notice to other side before granting an ex-parte order of injunction, unless a very very strong case is made out for the same.
( 9 ) IN the impugned order, which is at page 56, learned trial Judge has observed that, at this stage, she is not passing any order of ex-parte injunction but passing an order of status-quo. Learned trial Judge has specifically observed in the order that at this stage, it is not possible to decide whether the plaintiff has got any right in the suit property or whether the defendants have right in the property and in that view of the matter, it would be just and proper to direct the defendants to maintain status quo. It is the requirement of law to point out in the order whether any prima facie case is found in favour of the plaintiff, who has applied for injunction. At the time of granting ad-interim injunction without n
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