Ramdeen vs Rameshwar Dayal - 1985 Supreme(MP) 768

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : R. C. Lahoti.
For the Respondent: N. K. Jain.

Headnote:(1) Civil Procedure Code, 1908 – O. 39, R. 3 (Proviso) and S. 151 – exparte injunction order passed under O. 39, R. 3 vacated being in non – compliance of proviso there to – order is under S. 151.
       (2) Civil Procedure Code, 1908 – O. 43, R. 1 (r), O. 39, R. 3 and S. 151 – exparte injunction granted in non compliance of O. 39, R. 3 (Proviso) vacated – such order is under S. 151 and hence not appeal – able.
        Short Note
       1. Counsel for both sides have made forceful arguments but I have taken a different view in the matter on which, according to me, the petition must succeed.
       2. Held : An order of temporary injunction was passed without issuing notice to the defendant. This was done in exercise of powers conferred under Rule 3 of Order 39, C.P.C. But the question is whether there was compliance of provisions of the proviso by which the power is circumscribed and this question was not at all considered by the appellate Court when a reasonable and valid order, which trial Court had passed vacating its own ex – parte older, was set aside in appeal It is true that the appellate Court took the view that the notice on the defendant had been duly served and as such the temporary injunction granted before without issuing notice could not be vacated on the ground that no notice had been served What was challenged in appeal was the order passed on 15 – 12 – 1979 by the trial court. A certified copy of the order has been produced before me, which is placed on record. On a perusal of the said order I have no hesitation to agree with Shri N. K. Jain, learned counsel for the non – petitioner, that the order impugned was an order passed on the sole ground of non – service of notice on the defendant – petitioner, who was respondent in the Court below. However, what was done on 15 – 12 – 1979 by the trial Court and what effect the order carried did not enter the consideration of the appellate Court. The order – sheet of trial Court dated 7 – 7 – 1979 has been produced before me by Shri Jain and indeed the substance of the order is also noted in para 3 of the impugned order. The trial Court directed on that date by the said order that the matter shall precede ex – parte in as much as notice issued to the defendant had been refused. It is manifestly clear though that on that date the ad interim injunction granted in violation of proviso to Rule 3 was not made absolute, and the matter remained at large. Therefore, when, on 15 – 12 – 1979 the trial Court vacated its earlier order issuing ad interim temporary injunction in violation of preview, it did so to set at right the illegality and the jurisdictional infirmity from which its earlier order suffered. Nothing wrong could be found, therefore, with the order passed on 15 – 12 – 1979 which was well within the jurisdiction of the trial Court to pass and it was perfectly legal and valid order.
       3. I have no hesitation to say further that the order passed by the trial Court on 15 – 12 – 1979, which was impugned in appeal, was an order which could only have been passed under section 151 CPC and as such it was not an appeal able order. The appeal itself was incompetent. No effective order could have been rendered in appeal and, therefore, the order impugned before me, passed by the appellate Court is patently devoid of jurisdiction.
       Revision allowed.