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Madhya Pradesh High Court · body

1988 DIGILAW 66 (MP)

Bala v. Gopal

1988-02-25

V.D.GYANI

body1988
ORDER V.D. Gyani, J. 1. This Miscellaneous appeal under O. 43, R. 1(r). CPC arises out of an order dated 23-11-1987, passed by the Addl. District Judge, Kukshi (District Dhar), in Civil Suit No. 254 of 1987, thereby passing an ad-interim injunction (operative till disposal of the suit), restraining the appellants from (i) interfering with the plaintiff-respondent's possession of agricultural land, bearing survey No. 1/1, situated in village Sisgaon, Tahsil Kukshi, and (ii) from laying a pipe-line through the plaintiff's land, as described in the plaint. 2. The suit was filed on 16-11-1987, that very day report of the Reader was also called for, the same day it was registered and notices for settlement of issues were issued for 23-11-1987. The learned Judge has noted in his order dated 23-11-87 that by 12-30 p. m. when the case was called, the appellants were not present, as such the Court proceeded ex parte. 3. Having proceeded ex parte, the learned Judge took up for consideration, I-A. No. 2, an application for injunction, supported by an affidavit, and it was solely on the basis of this affidavit that an ad-interim injunction was passed. This order surprisingly enough, has been made operative till disposal of the suit. It has also been noted by the learned Judge that soon after concluding dictation of the impugned order, defendants appeared witn their counsel. 4. Before expressing any views on merits of such an order being passed, it is desirable that the Court while acting in such a hot-haste, as is reflected by the impugned order, should have considered the desirability of making the order operative till disposal of the suit, thus leaving no scope for its reconsideration, modification or alteration therein. 5. Be that as it may, the order is essentially based on averments made in the application for injunction and the affidavit filed in support thereof. The application under O. 39, Rules 1 and 2, CPC, cryptic in nature, as it is, and the affidavit so formal and defective, that no Court could have been persuaded to pass such an order, as has been passed by trial Court. 6. When an affidavit is filed in support of an injunction application, it is the duty of the Court to see thst it is properly drawn up and /erified. An affidavit, which is not properly drawn up or verified, in accordance with law, cannot be acted upon. 6. When an affidavit is filed in support of an injunction application, it is the duty of the Court to see thst it is properly drawn up and /erified. An affidavit, which is not properly drawn up or verified, in accordance with law, cannot be acted upon. The rules, framed by this Court in this regard are highly instructive and must be followed in such matters, particularly when an exparte order of injunction is passed. 7. It is significant to be noted at this stage that on 16-11-1987, when the trial Court directed issuance of notice of I.A. No. 2 (the injunctiou application), calling upon the defendant appellants to show cause as to why the application be not allowed, there was not even an affidavit in Support of I-A. No. 2. The affidavit in support of this application came to be filed by the plaintiff-respondent on 23-11-1987. 8. It is extremely doubtful if the Court could have issued a notice of such an injunction application, unsupported by an affidavit, as the opening words of Rule 1 of O. 39 CPC itself provides that "where in any suit it is proved by affidavit or otherwise", when there was no affidavit in support of an application for an ad-interim injunction there was no case, either for urgency or for issuance of a notice Rule 3(a)(1) of Order 39, CPC provides delivery of a copy of the affidavit filed in support of the application, to the opposite party. When the affidavit came to be filed by the plaintiff in support of his injunction application, I-A No. 2, on 23-11 87, the trial Court should have seen to it that even if the defendant-appellants were served with notices, they were not delivered or supplied copy of the affidavit sworn in support of the injunction application and when it came to be filed on 23-11-87, the trial Court instead of passing an injunction order, should have directed the plaintiff to supply a copy thereof to the defendants or cause it to be served on them. Instead of doing so, the trial Court proceeded with the application and passed the impugned order. 9. The power to grant injunction should be cautiously exercised, and that too upon clear and satisfactory grounds. Instead of doing so, the trial Court proceeded with the application and passed the impugned order. 9. The power to grant injunction should be cautiously exercised, and that too upon clear and satisfactory grounds. Courts must grant relief of injunction only in situations which so clearly call for it as to make its refusal work real and serious hardship and injustice. Injunction is a preventive relief against irremediable mischief. The Court no doubt has discretionary power to issue an ex parte injunction, but great care has to be taken before exercising that discretion. Discretion has to be exercised on sound judicial principles. What has to be judged while granting an ex parte injunction is whether there is some imminent danger to the property or if such a relief is not granted, whether it will expose the suitor to irreparable injury, in other words, defeat the very purpose for which the action has been brought. 10. Coming now to the merits of the case, Application, I-A. No. 2, contains plaintiff's assertion of his Bhumiswami rights of the agricultural land, bearing survey No. 1/1 admeasuring 2,864 hectares, situated in village Sis-gaon, Tahsil Kukshi. Paragraph 2 refers to an incident dated 31-11-87 when the defendants had made an attempt to lay the pipe-line, which was foiled by the plaintiff, who apprehended repeatition of such attempts and paragraph 3 relates to the alleged irreparable injury. The affidavit filed on 23-11-87, in support of this injunction application is verified as follows : "that the averments contained in paragraphs 1 and 2 above, are true to my knowledge and belief". 11. As noted above, the grounds of belief must be disclosed, so also the particular part of the affidavit, which is true according to the deponent's personal knowledge and the averments, which are believed to be true by him disclosing the grounds of such belief. This has not been done in the instant case. Such affidavits hardly conform to the requirements of law and no interim orders can be passed on such faulty affidavits. 12. Merits apart, the plaintiff is undoubtedly guilty of Suppressio veri. A material fact, having a vital bearing on the question of issuance of injunction order, was suppressed by him. He did not disclose the fact that he was a consenting party to the laying of pipe-line through the field. 12. Merits apart, the plaintiff is undoubtedly guilty of Suppressio veri. A material fact, having a vital bearing on the question of issuance of injunction order, was suppressed by him. He did not disclose the fact that he was a consenting party to the laying of pipe-line through the field. When the defendant-appellant's son had applied for loan to the Bank, it was only when the loan was granted and laying of pipe-line started that these obstructions were sought to be created. A full and faithful disclosure of facts is expected of the deponent, who claims equitable relief of injunction. A person indulging in suppression of material facts cannot seek Court's indulgence in granting equitable relief and no such relief should be granted to such a person even if the legal requirements are fulfilled by him. 13. For the foregoing reasons this appeal deserves to be allowed and is accordingly allowed. The impugned order is set aside. The lower Court's record be sent back immediately.