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IN THE HIGH COURT OF ALLAHABAD
RAVI NATH TILHARI, J.
Akhilesh Kumar Jaiswal & Anr. – Appellants
Versus
Karunesh Jaiswal & Ors. – Respondents
First Appeal From Order No.166 of 2021
Decided on : 17-09-2021
Code of Civil Procedure, 1976 - Order 43 and 39 Rule 1 and 4 - Section 24 and 148A - Civil Suit - Right of caveator - Right to lodge a caveat – Order of grant of temporary injunction - First Appeal - Plaintiff-appellants filed regular Suit for permanent injunction in which they filed an application for grant of temporary injunction under Order 39 Rule 1 of C.P.C.. The suit was instituted in Court of Civil Judge (Junior Divisoin). As valuation of the Suit beyond the pecuniary jurisdiction of the Civil Judge (Junior Division), the Suit was transferred to the Court of Civil Judge (Senior Division), itself, where an order of ad interim temporary injunction was passed ex-parte after hearing the plaintiff-appellant only - Held, While considering an application for vacation of order of temporary injunction under order 39 Rule 4 C.P.C. or any other provision, the Courts can not ignore the mandate of Section 148-A (3) C.P.C - It is the right of caveator of being heard if a caveat is filed and it is the duty of the Court to afford him opportunity of hearing and not passing any order without affording opportunity of hearing to caveator which needs be protected it being a right recognized by the statute, even if there is no fault on the part of the applicant - Appeal is dismissed.
JUDGMENT :
1. Heard Sri Dilip Kumar Pandey, learned counsel for the appellants and Sri Asit Srivastava, learned counsel for the respondents.
2. ‘Supplementary Reply to the Supplementary Objection filed by the opposite parties’ filed by Sri Dilip Kumar Pandey and ‘Additional Supplementary Affidavit/objection by the respondents/defendants filed by Sri Asit Srivastava are taken on record.
3. This First Appeal From Order under Order 43 Rule 1 of the Code of Civil Procedure, 1976 (C.P.C.) has been filed against the order dated 09.08.2021 passed by the learned Civil Judge (Senior Division), Fast Track Court, Lucknow, in Original Suit No. 1018 of 2021 (Akhilesh Kumar Jaiswal and others Vs. Karunesh Kumar Jaiswal and others) on the application of the defendant-respondents, under Order 39 Rule 4 C.P.C.. By order dated 09.08.2021, the order dated 30.07.2021 granting ad interim temporary injunction on the appellants’ application 6-C, has been set aside.
4. The plaintiff-appellants filed regular Suit No. 1018 of 2021 for permanent injunction in which they filed an application for grant of temporary injunction under Order 39 Rule 1 of C.P.C.. The suit was instituted in the Court of Civil Judge (Junior Divisoin), South, Lucknow on 30.07.2021. As the valuation of the Suit was Rs. 20,00,000/-(Twenty Lacs), beyond the pecuniary jurisdiction of the Civil Judge (Junior Division), South, Lucknow, the Suit was transferred to the Court of Civil Judge (Senior Division), Fast Track, Lucknow on 30.07.2021, itself, where an order of ad interim temporary injunction dated 30.07.2021 was passed ex-parte after hearing the plaintiff-appellant only.
5. On 02.08.2021, the defendant-respondents moved an application before learned District Judge, Lucknow stating that they had filed caveat on 29.07.2021 but without giving notice and affording an opportunity of hearing to them the order dated 30.07.2021 was passed. Upon the said application the learned District Judge, Lucknow by order dated 2.8.2021 called for the comments of both the court concerned.
6. On 2.08.2021 the respondent-defendant filed another application C-10 supported with affidavit C-11 upon which the Court of Civil Judge (Senior Division) Fast Track, Lucknow fixed 3.8.2021 for disposal of temporary injunction application preponing the date 06.08.2021 which was earlier fixed vide order dated 30.07.2021. On 03.08.2021, the matter was fixed for 4.08.2021 and then for 06.08.2021 and thereafter for 09.08.2021 on which date the order, under challenge in appeal was passed.
7. This Court, considering the seriousness of the allegations and the counter-allegations as regards filing and reporting of the caveat, in view of the submissions advanced, on 13.09.2021 had passed the following order:-
2. C.M.Application No. 116790 of 2021 along with the appellant's reply to the objection of the respondents is taken on record.
3. Supplementary affidavit/objection filed along with an application dated 13.09.2021 in Court filed by the respondents is also taken on record. The office shall allot number to this application.
4. Learned counsel for the appellants submits that in the Suit for permanent injunction being original Suit No. 1018/2021: Akhilesh Kumar Jaiswal and others Vs. Karunesh Jaiswal and others, filed by the plaintiff-appellants, learned Civil Judge (Senior Division), Fast Track, Lucknow on 30.07.2021, granted ad interim temporary injunction. On 02.08.2021 the defendant-respondents filed an application before the District Judge, Lucknow that they had filed caveat but the copy of the plaint of the suit and the application for temporary injunction was not served upon them and the ad interim order was granted, upon which learned District Judge, Lucknow asked for comments. The defendant-respondents also filed an application under Order 39 Rule 4 C.P.C. upon which the order dated 30.07.2021 has
The court emphasized that non-compliance with caveat procedures under Section 148-A C.P.C. violates natural justice, necessitating recall of any adverse interim orders.
The court upheld the validity of an interim order despite procedural claims regarding caveat linkage, emphasizing that the revision was filed prior to the caveat.
The court emphasized that orders affecting rights must follow due process, ensuring fair opportunity for all parties before any decision is made.
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