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1991 DIGILAW 1470 (ALL)

Sahmalpur Cold Storage, Jaunpur Road v. U. P. Finance Corporation

1991-12-04

N.L.GANGULY, N.N.MITHAL

body1991
JUDGMENT Mr. N. N. Mithal, J.-This appeal is directed against an order dated 26.1 1.91 whereby an earlier injunction order granted by the Court below on 4.7.91 has been declared to be void and ineffective. 2. It appears that the appellant had filed a suit to restrain the respondent from realising the alleged arrears of loan amount by attachment, sale and possession over the property in dispute. 3. The respondent appeared and contested the suit. The Court below, after hearing both the parties, passed an ad interim injunction order on 4.7.91 holding that the plaintiff had a prima facie case as also balance of convenience in his favour and also it was likely to cause irreparable injury in case the injunction was refused. However, during the course of argument the respondents had prayed that sometime may be granted to enable it to file certain documentary evidence. Keeping in view this prayer the court granted a month's time but also considered it necessary to issue temporary injunction in the mean time. Accordingly application 6-C by which a prayer for grant of temporary injunction was made, was directed to be put up for orders on 30.7.91 and for that period temporary injunction was granted restraining the respondents from attaching putting to auction or causing damage to the unit in question or to close it down. It also directed that the plaintiff's possession will not be disturbed in pursuance of the said proceedings. It appears that when the limited period for which the injunction was granted was to expire the plaintiffs made an application for extension of the interim order. This application was opposed by the respondents on the ground that compliance of Order 39 Rule 2 (g) Civil Procedure Code had not been made as no security was demanded from the appellant as required under the law. While considering this application the Court was of the view that the demand for security was essential and not temporary injunction could be granted to stay recovery proceedings unless the party seeking injunction gave security for the amount in question. The Court held the order dated 4.7.91 to be void and was totally ineffective for the above reasons and hence the application for extension of stay order was rejected. 4. Having heard learned counsel for the appellant we are of the opinion that this appeal should be disposed of at this stage. 5. The Court held the order dated 4.7.91 to be void and was totally ineffective for the above reasons and hence the application for extension of stay order was rejected. 4. Having heard learned counsel for the appellant we are of the opinion that this appeal should be disposed of at this stage. 5. In our opinion when the Court had passed an order dated 4.7.91 it was with the object of providing some opportunity to the respondent to file certain documents and the injunction order was to remain effective for the period of one month. It was for this reason that 30.7.91 was the date fixed. Either the Court should have disposed of the matter on that date or it should have extended the period of injunction order when the appellant had moved the court in this behalf vide its application 46-C From the impugned order it is not clear as to whether the application 6-C had been disposed of. While rejecting the application for extension of injunction order it has made earlier injunction also ineffective and void. This approach of the court was totally unjustified and against law. If the Court was of the view that in the earlier order security should have been demanded from the appellant then a direction in this behalf could have been made while passing the impugned Gift or the plaintiff appellant could have been directed to give security within a specified period after extending injunction meanwhile, merely because the Court had failed in its duty to take into consideration Rule 2 (g) of Order 39 as amended in U.P., the plaintiff could tot be penalised for the same. 6. In view of above, we find force in the submissions of the appellant. We accordingly direct that an injunction shall now be issued in terms of the order dated 4.7.91 which shall remain in force initially up to 20.12.91, the date fixed in the Court below. In the meantime the trial Court may pass such order as to such security as it may deem proper in terms of Order 39 Rule 2 (g) Civil Procedure Code 7. After the security has been given application 6-C shall be disposed of on merit after hearing the parties. 8. With these observations the appeal is disposed of. 9. In the meantime the trial Court may pass such order as to such security as it may deem proper in terms of Order 39 Rule 2 (g) Civil Procedure Code 7. After the security has been given application 6-C shall be disposed of on merit after hearing the parties. 8. With these observations the appeal is disposed of. 9. A certified copy of this order may be supplied to the learned counsel within twenty four hours on payment of usual charges.