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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
MA No. 39/2023
Santosh Sharma alias Santosh Kumari
..... appellant (s)
Through :- Mr. Ajay Sharma Advocate with
Mr. Pawan Saini Advocate.
V/s
Ramesh Kumar Sharma and others
.....Respondent(s)
Through :- Mr. Rohit Kohli Advocate.
Coram: HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
An ex parte ad interim injunction order is appealable, and the court must consider the principles of prima facie case, balance of convenience, and irreparable injury while granting an interim injunction.
Headnote:
INJUNCTION - EX PARTE - APPEALABILITY - [SUMMARY] An ex parte ad interim injunction order passed under Order XXXIX Rule 1 and Rule 2 of the Code of Civil Procedure is appealable. The appellant has the choice to file an appeal or approach the trial court for relief. If an appeal is filed, the doctrine of merger will come into force. The court must consider the principles of prima facie case, balance of convenience, and irreparable injury while granting an interim injunction.
Fact of the Case:
The appellant challenged an ex parte ad interim injunction order passed by the trial court, which restrained the appellant from releasing funds from two bank accounts. The appellant argued that the trial court failed to comply with the provisions of Section 148-A of CPC and did not provide an opportunity to be heard before passing the order.
Finding of the Court:
The court held that an ex parte ad interim injunction order is appealable under Order XLIII Rule (r) of the Code of Civil Procedure. The court also held that the trial court did not follow the principles of prima facie case, balance of convenience, and irreparable injury while granting the ex parte injunction order.
Issues: 1. Whether an ex parte ad interim injunction order is appealable. 2. Whether the trial court followed the principles of prima facie case, balance of convenience, and irreparable injury while granting the ex parte injunction order.
Ratio Decidendi: 1. An ex parte ad interim injunction order passed under Order XXXIX Rule 1 and Rule 2 of the Code of Civil Procedure is appealable. 2. The court must consider the principles of prima facie case, balance of convenience, and irreparable injury while granting an interim injunction.
Final Decision: The appeal was allowed, and the impugned order was set aside. The trial court was directed to decide the application for grant of ad interim relief within a reasonable time.
(29.11.2023.)
Caveat No. 1962/2023
Mr.Kohli appears for the caveator. Caveat stands discharged.
MA No. 39/2023
1
This appeal is directed against an ex parte ad interim order dated
03.11.2023 passed by the Court of 2nd Additional District Judge, Jammu in File
No. 193/Misc in a case titled „Ramesh Kumar Sharma vs. Santosh Sharma and
others whereby ad interim injunction has been granted in favour of respondent
No.1 herien.
Factual matrix of the case
2
It is stated by learned counsel for the appellant that respondent
No.1 herein is the second cousin of the appellant who fraudulently got
executed a will deed dated 24.12.2021 from the appellant and her deceased
Sr. No. 130
2
sister Satya Devi. After the death of appellant‟s deceased sister Satya Devi, the
share of her immovable and movable properties automatically devolved upon
the appellant by law of inheritance under Succession Act. According to the
appellant, the aforesaid will deed dated 24.12.2021 reveals that the same was a
joint will executed by the two testatrix and in the said will, the appellant and
her deceased sister declared that they are joint and absolute owner in
possession of total land measuring 28 kanals 10 marlas falling under khasra
No. 1180 min. As per the recitals made in the alleged will, the same would
come in operation after the death of both the appellant and her deceased sister.
It was further provided in the alleged will deed that after the demise of both the
testatrix, the land including all their other movable and immovable properties
shall be the exclusive properties of the beneficiary. It is stated that sister of the
appellant died on 24.01.2023 and in the presence of co-testatrix i.e the
appellant herein, the alleged will has not come into effect. Respondent No.1 on
16.05.2023 filed an application before the Court of learned Principal District
Judge, Jammu for issuance of succession certificate under the Indian
Succession Act. The appellant herein is arrayed as respondent in the said
application and he has filed her written statement which is pending
adjudication in the said Court. The deceased sister of the appellant during her
life time had maintained her accounts in saving bank account No.
0211040100008549 in J&K Bank branch Chowk Chabutra, Jammu and
monthly income scheme account No. 4724035263 in the Post Office, Mubarkh
Mandi Jammu. In both the accounts, the appellant herein is declared as a
nominee by her deceased sister which fact gets substantiated from letter dated
02.06.2023 issued by J&K Bank.
3
3
It is further stated that respondent No.1 instituted a civil suit on
21.11.2023 against the appellant and others and prior to the institution of the
said suit, the appellant herein filed a caveat. However, record reveals that on
01.11.2023, the trial Court issued notice to the counsel for the caveator Mr.
V.S.Sani for causing his appearance in the matter on 03.11.2023. The said
notice was forwarded to S.O Tamilat Saddar Court, Jammu for service along
with copy of plaint and annexures. It is stated that from 01.11.2023 to
03.11.2023, the counsel for the caveator was out of station and the said fact is
evident from the report dated 02.11.2023 submitted by the Tamilat wherein it is
stated that the counsel for the caveator is not available in the court premises
who was informed telephonically about the date of hearing and listing of the
case before the concerned Court. It is stated that copy of plaint along with
annexures was not served upon the counsel for the caveator. The aforesaid suit
came up for consideration on 03.11.2023 and upon consideration of the matter,
the proxy counsel for the caveator informed the court regarding non
availability of counsel for the caveator. However, the trial Court vide order
dated 03.11.2023 by way of ad interim injunction directed respondents No. 2
and 3 not to release any amount in Saving AC No. 0211040100008549 of J&K
Bank Branch Chowk Chabutra Jammu and in A.C No. 47124035263 lying in
the Post Office Branc
