1995 Supreme(All) 1310

HIGH COURT OF ALLAHABAD
D.K. Seth, J.
Mohd Daud – Appellants
Versus
Matloob Ahmad Alias Babu - Respondents
Decided on : Dec 21, 1995

A court cannot vacate an injunction suo motu without giving the opposite parties an opportunity to be heard.

Headnote:

INJUNCTION - VOID ORDER - RESTORATION OF POSSESSION - U. P. AMENDMENT OF ORDER XXXIX, RULE 2, C. P. C. - SECTION 41 OF THE SPECIFIC RELIEF ACT, 1963 - ORDER XXXIX, RULE 2-A, C. P. C. - SECTION 144, C. P. C. - ORDER VII, RULE 11, C. P. C. - ORDER XXII, RULE 10, C. P. C. - An injunction granted in contravention of clauses (a) to (h) of the proviso to Order XXXIX, Rule 2, C. P. C., as applicable to U. P., shall be void. Section 41 of the Specific Relief Act, 1963, prohibits injunctions to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought. However, this prohibition does not apply to courts which are not subordinate in the sense that they are co-ordinate or superior, and does not prevent a court from recalling its own proceedings. An order for restoration of possession can be granted by a court even where Section 144, C. P. C. does not apply, in order to correct an injustice caused by an error on the part of the court. A plaint can be rejected under Order VII, Rule 11, C. P. C., if it discloses no cause of action, but this does not render an injunction granted in the suit non-est. A party who has been dispossessed can seek to be substituted in a pending suit under Order XXII, Rule 10, C. P. C., instead of instituting a fresh suit.

Fact of the Case:

The petitioners, who were the decree-holders in an execution case, obtained possession of the disputed property through Court after obtaining a decree for eviction of the tenants. The opposite parties, who claimed title to the property through a third person, filed a suit for injunction to restrain the petitioners from interfering with their possession. The trial court granted an ex parte ad interim injunction, which was later vacated by the same court suo motu. The opposite parties filed an appeal against the order vacating the injunction, which was allowed by the appellate court. The petitioners filed a revision petition challenging the order of the appellate court.

Finding of the Court:

The court held that the trial court erred in vacating the injunction suo motu without giving the opposite parties an opportunity to be heard. The court also held that the injunction granted in the suit was not void and non-est merely because it was granted in contravention of the U. P. Amendment of Order XXXIX, Rule 2, C. P. C., as the said amendment had been repealed and omitted subsequent to the grant of the injunction. The court further held that the opposite parties could not be faulted for instituting a fresh suit instead of seeking substitution in the pending suit, as they had already been dispossessed of the property.

Issues: 1. Whether the trial court erred in vacating the injunction suo motu without giving the opposite parties an opportunity to be heard. 2. Whether the injunction granted in the suit was void and non-est merely because it was granted in contravention of the U. P. Amendment of Order XXXIX, Rule 2, C. P. C. 3. Whether the opposite parties could be faulted for instituting a fresh suit instead of seeking substitution in the pending suit.

Ratio Decidendi: 1. A court cannot vacate an injunction suo motu without giving the opposite parties an opportunity to be heard. 2. An injunction granted in contravention of the U. P. Amendment of Order XXXIX, Rule 2, C. P. C., is not void and non-est if the said amendment has been repealed and omitted subsequent to the grant of the injunction. 3. A party who has been dispossessed of the property cannot be faulted for instituting a fresh suit instead of seeking substitution in the pending suit.

Final Decision: The court allowed the revision petition, set aside the order of the appellate court, and restored the injunction granted by the trial court. The court also directed the trial court to hear the injunction matter afresh and dispose of the main suit as expeditiously as possible.