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2002 DIGILAW 262 (JK)

Chajju Ram v. Milkhi Ram

2002-08-16

B.L.BHAT

body2002
This motion of Revision which is directed against the order dated 30.4.2002 passed by the learned Ist. Civil Subordinate Judge, Jammu by virtue of which order directing the maintenance of status-quo order came to be passed. It appears that in a suit for permanent, prohibitory injunction restraining the defendant-petitioner herein from interfering into the peaceful possession or raising construction on the land measuring about 6 marlas comprising of Kh. No. 975/904/558/2 located at Gurha Slathian instituted by the plaintiff (hereinafter referred as respondent) before the trial court, a petition for issuance ad-interim injunction came to be filed. Learned trial court after holding that the matter being of emergent nature, an order of status-quo on spot till the next date came to be issued which is impugned in this motion of Revision. The motion of revision rests mainly on the ground that the order of passing of status-quo order is illegal and has been passed with material irregularity. The stand of Mr. B.S. Slathia, Sr. Advocate appearing on behalf of the petitioner-defendant is that the impugned order is illegal, cannot be sustained as the same has been issued by the trial court in exparte without issuance of notice and without recording the satisfaction to the effect that the urgency involved in the matter is of such a nature that in case of issuance of notice under O.39 Rule-3 of Civil Procedure Code is not dispensed with, the object of granting injunction would be defeated. On the other handstand of Mr. B.R. Sharma Advocate appearing on behalf of respondent-plaintiff is that order of grant of injunction in exparte or its merits passed as after hearing the parties is appealable, therefore, the motion of revision is not sustainable in view of the provisions enshrined under section 115 CPC. Considered the rival contentions of the learned counsel for the parties. No doubt grant or refusal of temporary injunction rests on the consideration that the party seeking ad-interim injunction has a Prima-facie case, that the protection is necessary from the species of injury known as irreparable before the legal rights is established and that the mischief or inconvenience likely to arise from the injunction is greater than from granting it. No doubt grant or refusal of temporary injunction rests on the consideration that the party seeking ad-interim injunction has a Prima-facie case, that the protection is necessary from the species of injury known as irreparable before the legal rights is established and that the mischief or inconvenience likely to arise from the injunction is greater than from granting it. But after the Civil Procedure Code Amendment Act 1983 which came into force on 15.8.1983 these factors no longer can justify the order of issuance of exparte interim-injunction i.e. to say without notice to the other side. Proviso to order 39 Rule-3 of the amended Code of Civil Procedure requires that in the matter of grant of interim injunction order without notice, the court must record reasons for its opinion as to why the object of granting the injunction would be defeated by delay. Having regard to this law the impugned order demonstrates that the learned trial court while passing the impugned exparte ad-interim injunction order has not recorded its satisfaction to the effect as to why the object of injunction would be defeated by delay. The simple observation of the trial court that the case is of emergent nature without recording the reasons about its opinion, it cannot be said to be the compliance of this proviso, which is mandatory in character. Viewed thus, the order impugned which is issued in quite disregard to the O.39 Rule-3 CPC suffers with jurisdictional error and has been patently passed by the trial court in exercise of jurisdiction illegally and with material irregularity. Once the High Court comes to the conclusion that the order impugned before it has been passed in exercise of jurisdiction illegally by the court subordinate to it, can revise the same, despite the said order is appealable under O.43 R-1 CPC. In this behalf reference is made to a Division Bench judgement of this court delivered in CR No. 114/93 titled State of J&K& Ors. v. Ghulam Rasool decided on 2.9.1997. In the result motion of revision is allowed and the impugned order having been passed without jurisdiction illegally by the trial court is hereby set-aside. No order as to costs. The trial court be intimated about this order.