Back
2008 Supreme(J&K) 40
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mohd. Yaqoob Mir, J.
Syed Zulfikar Ali - Appellant
Versus
Amina - Respondent
Civil Revision No. 165/2006
Decided On : 27 February, 2008
Advocate For Appellant: N.A. Kuchai
Advocate For Respondent: H.I. Hussain
The central legal point established in the judgment is the importance of proper exercise of jurisdiction and the opportunity of being heard before making an order absolute.
Headnote:
Order 39 Rule 4 - Civil Procedure - 115, 39-1, 39-2, 39-3, 39-3-A - The court discussed the application of Order 39 Rule 4 of the Code of Civil Procedure and the supervisory powers under Section 115 of the Code. It highlighted the principles of granting ad interim injunction and the conditions to be considered, emphasizing the need for proper exercise of jurisdiction and the opportunity of being heard before making an order absolute.
Fact of the Case:
The petitioner filed an application under Order 39 Rule 4 of the Code of Civil Procedure seeking discharge/variance of an order of injunction. The trial court rejected the application, and the appellate court upheld the decision. The petitioner then filed a revision petition against the orders.
Finding of the Court:
The court found that the exparte order of injunction was passed without proper consideration of the principles of granting ad interim injunction. It also noted the failure to exercise jurisdiction and the absence of an opportunity for the petitioner to be heard. As a result, the court set aside the orders and directed the trial judge to dispose of the application for injunction afresh after hearing both parties.
Issues: The issues revolved around the application of Order 39 Rule 4 of the Code, the proper exercise of jurisdiction, and the opportunity of being heard before making an order absolute.
Ratio Decidendi: The court emphasized the need for proper consideration of the principles of granting ad interim injunction, including the prima facie case, balance of conveniences, and irreparable loss. It also highlighted the importance of providing an opportunity for the party against whom the order of injunction has been passed to be heard before making the order absolute.
Final Decision: The revision petition succeeded, and the court set aside the orders, directing the trial judge to dispose of the application for injunction afresh after hearing both parties. It also maintained the status quo vis-a-vis the suit property until the disposal of the application.
2. For appreciating the matter in its right perspective, it shall be quite advantageous to precisely notice the factual background of the case:
3. One Syed Ahmad Shah has died leaving behind land measuring 47 kanals and 14 marlas including two storeyed building situated at village Reshipora, Budgam. Petitioner is the son, respondent no. 1 and 3 are daughters, whereas, respondent no. 2 is the widow of the deceased. Respondent no. 1 Mst. Ameena (plaintiff) has filed suit for declaration partition and permanent injunction, qua the suit property, i.e., property left behind by the deceased Syed Ahmad Shah. Alongside suit, application for temporary injunction has also been filed. Interim temporary injunction, after dispensation of prior notice to otherside in terms of Order 39 Rule 3, has been passed, which was to remain effective till next date i.e., 15.3.2001. Petitioner has been asked to file objections, in response thereof, petitioner (non-applicant) therein caused appearance and filed objections, as is reflected in the interim order recorded on 31.3.2001. On 30.10.2001, arguments were partly heard and were to be concluded on 6.11.2001. On 6.11.2001, it has been recorded that an application for amendment has been filed by respondent (plaintiff), therefore, further arguments deferred, then on 14.5.2002, in absence of the petitioner order has been passed, whereunder, interim direction has been made absolute till final disposal of the suit.
4. Petitioner has filed application under Order 39 Rule 4 of the Code of Civil Procedure (for short "the Code") on 21.10.2003. It is this application which has been rejected by the trial Court vide its order dated 7.6.2004, opining therein that order dated 14.5.2002 cannot be interfered in terms of Order 39 Rule 4 of the Code. Aggrieved by this order, appeal has been preferred before the Court of Id. District Judge, Budgam, which too has been dismissed.
5. Heard. Considered.The moot question for determination is as to whether in the given circumstances application under Order 39 Rule 4 of the Code could lie or not. Appearing counsel for the petitioner contended that both the orders first dated 23.2.2001 and second dated 14.5.2002 of Id. Sub Judge, Budgam are totally illegal. No satisfaction whatsoever has been recorded about existence of prima facie case, balance of convenience and irreparable loss. As against exparte order of injunction passed on 23.2.2001, objections as were called were filed. Part arguments were heard, then abruptly on 14.5.2002 without deliberating upon the objections and without hearing the petitioner, in an arbitrary manner, order has been made absolute. Further more, there has been change in the circumstances warranting variation of the order in accordance with order 39 Rule 4 of the Code. Learned counsel further contended that Id. appellate court up holding the view of the Id. Sub Judge illegally has traveled beyond the scope of the appeal. Appearing counsel for the respondents controverting the submissions contended that the application under Order 39 Rule 4 of the Code was rightly rejected as not maintainable because the order has been passed after opportunity has been granted to otherside of being heard. When order is passed after notice, it assumes finality so for as the court passing it. The petitioner has not chosen to file appeal. In support relied on the judgment reported in 1980 SLJ page 61.
6. Thoughtfully considered the submissions and meticulously perused the record. What emerges therefrom is that the exparte order of injunction, which was effective till 15.3.2001, has been passed in a mechanical manner without any reference to satisfaction of three celebrated principles. The operative portion of order is reproduced hereinbelow:
"I have gone through application under Order 3
