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2001 DIGILAW 349 (JK)

Ram Singh v. Amar Singh

2001-12-31

R.C.GANDHI

body2001
1. This Revision Petition has arisen out of an ex-parte interim order dated 21.10.1998 passed by the 1st. Addl. Munsiff (Forest Magistrate) Jammu in an application presented in a suit in exercise of Power under 0.39 Rules 1 and 2 CPC. The operative portion of the order is extracted below and reads: - "I have heard the learned council for the applicants-plaintiff at length, perused the pleadings as well as the averments made in the application. I think the applicants plaintiffs have made out of prima-facie case before me and if at this stage if interim directions are not granted, the applications-plaintiffs may suffer an irreparable loss. Since the matter seems to be of an emergent nature, therefore notice under 0.39 R. 3 CPC is dispensed with and non-applicants-defendants are temporarily restrained from interfering in the suit land from digging earth digging tube-well and cutting plants and trees till 26.10.1998. However, the non-applicants defendants are at liberty to file objections if they choose to do so. Put up to 26.10.1998". 2. This order has been challenged on the ground that the trial court had failed to exercise jurisdiction and thus passed erroneous order resulting in failure of justice. His specific submission is that the mandate of Rule-3 of 0.39 CPC has not been followed and complied with by the Court, spelling cut the reasons to satisfy the requirement of law for grant of an interim injunction. Rule-3 on which reliance has been placed reads as :- "3. before granting injunction court to direct notice to opposite party:-The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party". 3. This provision of law places a legal obligation on the court, before granting interim relief, to record reasons for its opinion that the object of granting the ad-interim injunction would be defeated by delay, if not granted. It is obligatory upon the trial court before granting injunction to bring issuance of injunction within exception provided in Rule of 0.39 of CPC. It has to give reasons for forming its opinion that the object and purpose of granting injunction would be defeated if delayed. It is obligatory upon the trial court before granting injunction to bring issuance of injunction within exception provided in Rule of 0.39 of CPC. It has to give reasons for forming its opinion that the object and purpose of granting injunction would be defeated if delayed. The trial court has recorded in the order that a prima-facie case is made cut and if at this stage interim direction is not granted, the applicant-plaintiff may suffer irreparable loss. The trial court has to dispense with the service of the notice recording satisfaction that the matter is of emergent nature and without recording it, interim injunction was issued which is in breach and negation of the law contained in the aforesaid provision. The trail court has not complied with the mandatory provision of law with requisite reasons to bring the case within the Exception provided in Rule-3, have not been assigned and spelt out. 4. Learned counsel for the petitioner in support of his plea has relied upon the Division Bench Judgment of Allahabad High Court delivered in "Road Flying Carrier Vs. The General Electric Co. of India Ltd." reported in AIR 1990 Allahabad 134 wherein it is held that: - "Rule 3 of 0.39, C.P.C lays down that only in case where it appears to the court that object of granting injunction would be defeated by the delay it has no power to issue ex-parte order of injunction. In that circumstance also the court has to record reasons for its opinion that the object of granting injunction would be defeated by the delay. Sri R.K. Agarwal, learned counsel for the respondents has however, submitted that even if reasons have not been mentioned, yet there was material, which was enough for forming its opinion to grant exparte injunction order. We cannot agree to this submission, for the simple reasons that where law requires recording of reasons for doing a particular act, the mere presence of material on the record is not sufficient; but it must also be shown that the court has applied its mind to that material. Reasons must find a place in the order ultimately passed by a court." 5. The trail court has provided an opportunity to the defendants to file objections to interim application. They are at liberty to file objections and seek modification of the injunction raising all grounds, which are available to them. Reasons must find a place in the order ultimately passed by a court." 5. The trail court has provided an opportunity to the defendants to file objections to interim application. They are at liberty to file objections and seek modification of the injunction raising all grounds, which are available to them. The trail court shall pass fresh order after hearing the parties, till then parties shall maintain in status-quo on spot for the reasons that the opposing party may not change the nature of the suit land which may invite multiplicity of litigation. The Revision Petition is accordingly disposed of.