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High Court Of Allahabad
Pradeep Kant, J.
Ahmadi Khanam
Vs.
IIIrd Addl District Judge Gonda
Decided on: Dec 15, 1999
INJUNCTION - ORDER 39 RULES 1 AND 2 CPC - SECTION 151 CPC - INTERPRETATION AND APPLICATION - COURT'S DISCRETION - APPEALABILITY OF EX-PARTE INJUNCTION - POWER OF APPELLATE COURT - CIRCUMSTANCES WARRANTING MODIFICATION OF STATUS QUO ORDER.
Fact of the Case:
Plaintiffs filed a suit for certain properties and an application for temporary injunction under Order 39 Rules 1 and 2 CPC along with the plaint. The trial court found no urgency and ordered issuance of notices. Plaintiffs filed another application for temporary injunction under Order 39 Rules 1 and 2 read with Section 151 CPC and an application for amendment of the plaint. The trial court allowed the amendment and granted an order for maintaining status quo. On the same day, plaintiffs filed another application purporting to be under Section 151 CPC, alleging that the status quo order was vague and injurious, and sought an injunction restraining defendants from interfering with their possession. The trial court granted the injunction. Defendants appealed, and the appellate court dismissed the appeal with respect to the status quo order but allowed it in part with respect to the injunction, holding that the trial court had no jurisdiction to grant the injunction.
Finding of the Court:
The High Court held that the trial court erred in granting the injunction without recording reasons and complying with the provisions of Rule 3 of Order 39 CPC. It also held that the appellate court was justified in setting aside the injunction, as the trial court had not recorded any reason for modifying the status quo order and had not considered any compelling circumstances that arose after passing the order. The High Court further held that the appeal against the injunction was maintainable, as the plaintiffs had not exhausted their remedy under Order 39 Rule 4 CPC.
Issues: 1. Whether the trial court erred in granting the injunction without recording reasons and complying with the provisions of Rule 3 of Order 39 CPC? 2. Whether the appellate court was justified in setting aside the injunction? 3. Whether the appeal against the injunction was maintainable?
Ratio Decidendi: 1. The trial court erred in granting the injunction without recording reasons and complying with the provisions of Rule 3 of Order 39 CPC, which mandates that 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 the injunction, direct notice of the application for the same to be given to opposite parties necessarily which means that in all cases the ex-pane injunction should be granted as an exception whereas notice has to be issued as a rule, in case the Court is satisfied for issuing the notice. This exception is further fortified and circumscribed by the provisions of Rule 3 14. 2. The appellate court was justified in setting aside the injunction, as the trial court had not recorded any reason for modifying the status quo order and had not considered any compelling circumstances that arose after passing the order. 3. The appeal against the injunction was maintainable, as the plaintiffs had not exhausted their remedy under Order 39 Rule 4 CPC.
Final Decision: The High Court dismissed the writ petition challenging the appellate court's order.
Pradeep Kant, J.
The present writ petition has been filed by the petitioners under Article 226 of the Constitution of India, praying for issuance of a writ in the nature of certiorari for quashing the judgment and order dated 1- 11-1999 passed by the learned IIIrd Additional District Judge, Gonda, contained in Annexure-3 to the writ petition. The preliminary objection was raised by the opposite parties that the petition under Article 226 of the Constitution is not maintainable therefore, I have treated this petition under Article 227 of the Constitution.
2. THE plaintiffs-petitioners had filed a suit with respect to certain properties allegedly inclusive of agricultural and residential properties against defendants-opposite parties 3, 4 and 5 and that suit was instituted on 7th September, 1999. An application under Order 39 read with Rules 1 and 2 of the Code of Civil Procedure was also filed alongwith the plaint on the same day.
The learned trial Court was not convinced that any case of urgency has been made out so as to grant any ad-interim injunction, therefore, an order for issuance of notices fixing 22-9-1999 as the date of hearing of the application for temporary injunction was passed.
3. THE plaintiffs-petitioners on 8th September, 1999, moved another application for fixing an early date in the case and at the same time also moved an application for amendment of the plaint. THE amendment prayed for was to the effect for correcting the plot No. 576 Ka as 873 Ka. On 9th September, 1999, the amendment application was allowed and on the very next day an application for temporary injunction (Second application) under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure was also filed.
4. THE trial Court on the said application passed an order for maintaining status quo. After passing of the said order on that very day, another application was moved by the plaintiffs- petitioners purporting to be under Section 151, CPC of the Code of Civil Procedure indicating therein that the order of status quo is vague and injurious and, therefore, the defendants be restrained from dispossessing the plaintiff-petitioners or interfering in their peaceful possession. A prayer was also made that the order passed earlier on the application under Order XXXIX Rules 1 and 2 read with Section 151, CPC be modified accordingly and the defendants be directed not to disturb the possession of the plaintiffs-petitioners. This application was allowed on the same day by the trial Court by means of the order of the same day and the temporary injunction was granted directing the defendants not to interfere in the peaceful possession of the plaintiffs. THE first order which was passed on 10th September, 1999 directing the defendants to maintain status quo has been brought on record as Annexure C-13 to the counter-affidavit. THE petitioners have not filed the said order. THE order by means of which the earlier order of status quo was modified and substituted by an order of temporary in junction has been brought on record as An-nexure-1 to the writ petition.
The defendants on coming to know about the aforesaid orders moved an application for vacation of ex-parte interim injunction and also filed an appeal under Order XLIII, Rule 1 (r) before the learned District Judge which came up for hearing before III Additional District Judge, Gonda.
5. THE appellate Court while dismissing the appeal with respect to challenge made to the order of maintaining status quo allowed the appeal in part with respect to modification of the order restraining the defendants from interfering the peaceful possession of the plaintiffs.
6. AGGRIEVED by the order passed by the Appellate Court, the petitioners-plaintiffs have approached this Court challenging the same on the ground that the finding recorded by the appellate Court are not borne out from the record and that on the one hand the appellate Court has accepted that the power to grant injunction v
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