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2008 DIGILAW 51 (JK)

Syed Zulfikar Ali v. Amina

2008-02-27

MOHAMMAD YAQOOB MIR

body2008
1. Instant revision is directed against the order dated 31.7.2006 passed by the Id. District Judge, Budgam, whereunder order passed by the Id. Sub Judge, Budgam dated 7.6.2004 has been up-held. 2. For appreciating the matter in its right perspective, it shall be quite advantageous to precisely notice the factual background of the case: 3. One Syed Ahmad Shah has died leaving behind land measuring 47 kanals and 14 marlas including two storeyed building situated at village Reshipora, Budgam. Petitioner is the son, respondent no. 1 and 3 are daughters, whereas, respondent no. 2 is the widow of the deceased. Respondent no. 1 Mst. Ameena (plaintiff) has filed suit for declaration partition and permanent injunction, qua the suit property, i.e., property left behind by the deceased Syed Ahmad Shah. Alongside suit, application for temporary injunction has also been filed. Interim temporary injunction, after dispensation of prior notice to otherside in terms of Order 39 Rule 3, has been passed, which was to remain effective till next date i.e., 15.3.2001. Petitioner has been asked to file objections, in response thereof, petitioner (non-applicant) therein caused appearance and filed objections, as is reflected in the interim order recorded on 31.3.2001. On 30.10.2001, arguments were partly heard and were to be concluded on 6.11.2001. On 6.11.2001, it has been recorded that an application for amendment has been filed by respondent (plaintiff), therefore, further arguments deferred, then on 14.5.2002, in absence of the petitioner order has been passed, whereunder, interim direction has been made absolute till final disposal of the suit. 4. Petitioner has filed application under Order 39 Rule 4 of the Code of Civil Procedure (for short "the Code") on 21.10.2003. It is this application which has been rejected by the trial Court vide its order dated 7.6.2004, opining therein that order dated 14.5.2002 cannot be interfered in terms of Order 39 Rule 4 of the Code. Aggrieved by this order, appeal has been preferred before the Court of Id. District Judge, Budgam, which too has been dismissed. 5. Heard. Considered.The moot question for determination is as to whether in the given circumstances application under Order 39 Rule 4 of the Code could lie or not. Appearing counsel for the petitioner contended that both the orders first dated 23.2.2001 and second dated 14.5.2002 of Id. Sub Judge, Budgam are totally illegal. 5. Heard. Considered.The moot question for determination is as to whether in the given circumstances application under Order 39 Rule 4 of the Code could lie or not. Appearing counsel for the petitioner contended that both the orders first dated 23.2.2001 and second dated 14.5.2002 of Id. Sub Judge, Budgam are totally illegal. No satisfaction whatsoever has been recorded about existence of prima facie case, balance of convenience and irreparable loss. As against exparte order of injunction passed on 23.2.2001, objections as were called were filed. Part arguments were heard, then abruptly on 14.5.2002 without deliberating upon the objections and without hearing the petitioner, in an arbitrary manner, order has been made absolute. Further more, there has been change in the circumstances warranting variation of the order in accordance with order 39 Rule 4 of the Code. Learned counsel further contended that Id. appellate court up holding the view of the Id. Sub Judge illegally has traveled beyond the scope of the appeal. Appearing counsel for the respondents controverting the submissions contended that the application under Order 39 Rule 4 of the Code was rightly rejected as not maintainable because the order has been passed after opportunity has been granted to otherside of being heard. When order is passed after notice, it assumes finality so for as the court passing it. The petitioner has not chosen to file appeal. In support relied on the judgment reported in 1980 SLJ page 61. 6. Thoughtfully considered the submissions and meticulously perused the record. What emerges therefrom is that the exparte order of injunction, which was effective till 15.3.2001, has been passed in a mechanical manner without any reference to satisfaction of three celebrated principles. The operative portion of order is reproduced hereinbelow: "I have gone through application under Order 39 Rule 1, 2 and 3 CPC and also application for interim relief. The plaintiff has filed the declaratory suit with a consequential relief of permanent injunction and partition against the defendants/non- applicants. The notice under Order 39 Rule 3 is dispensed with and it is ordered that non-applicant no. 1 is temporarily restrained from alienating/transferring or changing the nature of the suit property till next date of hearing. He is also restrained from receiving any compensation from non-applicant no. 2 till next date of hearing regarding any portion of the suit property. The notice under Order 39 Rule 3 is dispensed with and it is ordered that non-applicant no. 1 is temporarily restrained from alienating/transferring or changing the nature of the suit property till next date of hearing. He is also restrained from receiving any compensation from non-applicant no. 2 till next date of hearing regarding any portion of the suit property. A notice be issued to the non-applicants calling upon them to appear and answer the claim of the plaintiff/applicant. A copy of this order alongwith the copy of the plaint other connected applications be served upon the non applicants. The matter shall be considered afresh after the otherside files objections in the matter. Put upon on 15.3.2001". 7. On 15.3.2001 fixed, order has not been extended, then on 31.3.2001, objections have been filed, but order has been extended. At the time of passing of the order supra, respondent no. 1 and the Collector were the only parties (defendants). The application was required to be disposed of within a period of one month, otherwise reasons were to be recorded as is ordained by Order 39 Rule 3-A of the Code. Compliance of Rule 3-A of the Code has become causality. Matter continued till 30.10.2001. On 30.10.2001, arguments were heard partly, then on 6.11.2001, it has been recorded that since application for amendment has been filed, so further arguments could not be heard. Matter continued as it is till 14.5.2002. In the meantime, respondent (plaintiff) filed application for amendment, which was allowed, originally, there were only two defendants i.e., appellant and the Collector, then rest of the defendants were impleaded. On 14.5.2002, in a mechanical manner, in absence of the petitioner (defendant) following order has been passed: "L/C for the petitioner present. L/C for respondent no. 4 is also present. Heard. The interim direction is made absolute till final disposal of the suit. Application is disposed of and shall form part of the main suit file. " 8. In the record sheet of the main suit, on 14.5.2002, in view of the absence of defendants 1 to 3, means appellant and respondents 2 and 3, the matter was adjourned, awaiting their presence. 9. No doubt, it is settled position of law that when exparte order of injunction is passed, the otherside has right to file application in terms of Order 39 Rule 4 of the Code seeking discharge/variance of the Order. 9. No doubt, it is settled position of law that when exparte order of injunction is passed, the otherside has right to file application in terms of Order 39 Rule 4 of the Code seeking discharge/variance of the Order. Once the party has caused appearance, opportunity has been given of being heard, then matter cannot be re-opened by filing application under Order 39 Rule 4 of the Code afresh. Same principle has been laid down in the judgment reported in SLJ 1980 paged 61. 10. In the instant case, the position is somewhat different. The court is clothed with the supervisory powers under Section 115 of the Code to set at naught the orders which have been passed without the jurisdiction or where the court has failed to exercise the jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity or which may have effect of causing failure of justice. Scope of Section 115 of the Code and the scope of Order 39 Rule 4 of the Code fell for the consideration of High Court of Patna, wherein it has been opined that when the opportunity of being heard is not given, order is open for intervention under Order 39 Rule 4 of the Code. In the reported judgment after grant of ad-interim order of injunction, notice had been issued to otherside and after notice ad-interim injunction granted was made absolute. Opposite party came up with an application under Order 39 Rule 4 of the Code for discharge of the order, same was resisted on the ground that the exparte order has been passed and made absolute after notice, therefore, application under Order 39 Rule 4 will not lie. Aggrieved party therein contended that notice at all had not been served upon him, therefore, he has not been afforded an opportunity of being heard, hence, application will lie. It shall be relevant to reproduce para no. 3 of the judgment reported in AIR 1964 Patna page 166 as under: "Mr. Aggrieved party therein contended that notice at all had not been served upon him, therefore, he has not been afforded an opportunity of being heard, hence, application will lie. It shall be relevant to reproduce para no. 3 of the judgment reported in AIR 1964 Patna page 166 as under: "Mr. Asghar Hussain, appearing for the petitioner, has contended that the Court had no jurisdiction under Order XXXIX, rule 4 of the Code to recall the order of injunction already passed as it was intended to apply to only two cases, namely, (1) where in certain urgent cases the court could pass an ex parte order of injunction under rule 3 of Order XXXIX, and (2) where the order of injunction may have the effect of becoming unduly harsh or unnecessary or unworkable if there had already been a previous order or injunction. In support of, this contention, he has cited before me a Bench decision of the Madras High Court, in Gopvinda Ramanuja Goswami v. Vijiaramaraju, AIR 1929 Mad. 803. In that case their Lordships did make an observation that Order XXXIX rule 4 is intended to cover to classes of cases, (1) when an urgent order ex parte has been passed under rule 3, rule 4 will allow the party against whom it has been passed to apply to have it discharged or varied or set aside, and (2) when an injunction order already in force has, owing to fresh circumstances, become unduly harsh or unnecessary or unworkable, it would be open to either party to apply under rule 4 to the Court to discharge vary or set it aside. It was further observed that rule 4 is not intended to set at naught the ordinary cursus curiae that, once a Court has decided a matter after giving each side an opportunity of being heard, its order is final and binding on itself as much as on the parties, and cannot be reopened except on the representation of some new matter not available when the original order was passed. In my opinion, this case, instead of being any assistance to the petitioner, supports the case of the defendants. In my opinion, this case, instead of being any assistance to the petitioner, supports the case of the defendants. The ratio of that case appears to be that, far order of injunction has been passed after giving opportunity to both the parties to be heard, it cannot ordinarily be set aside or varied under rule 4, but where there has been no opportunity given to a party against whom the order of injunction been passed to be heard, that principle of law will not apply and rule 4 of Order XXXIX of the code will come to the aid of that party to require the court to recall the order. In the instant case, on the finding that the notice of the ad interim order of injunction was not served on the defendant, it was a clear case where the court could exercise its power under rule 4 of Order XXXIX. More-over the effect of the decision of the Madras High Court is not that the principles of rule 4 could be invoked only in two classes of cases enumerated by their lordships in their judgment. Their lordships have made a reference to two classes of cases only by way of illustration. They did not, however, say that there cannot be a third class of cases in which, on the principle enumerated above, rule 4 could not be invoked. " 11. The two situations as quoted hereinabove, have also been taken note of by the learned trial court in the instant case on the basis of which application of the petitioner has been rejected. But in reported judgment, it has been held that same will not apply as the party had not been given an opportunity of being heard. The said principle will apply as the case in hand has its own features, though notice served, appearance caused but thereafter condemned unheard for no willful fault of petitioner. 12. In the judgment reported in AIR 1972 Patna page 128, it has been held: "This is all we find in the impugned order. He failed to consider three important conditions for the grant of ad interim injunction, namely. (i) prima facie case to be established by the plaintiff; (ii) irreparable loss which can be compensated in damages if an injunction is refused and (iii) the balance of convenience. He failed to consider three important conditions for the grant of ad interim injunction, namely. (i) prima facie case to be established by the plaintiff; (ii) irreparable loss which can be compensated in damages if an injunction is refused and (iii) the balance of convenience. In my opinion, therefore, learned subordinate Judge has failed to exercise jurisdiction on the question of well established principle of law. Thus this court has jurisdiction to interfere with the said order under Section 115 of the Code." 13. In the reported judgment, it has been noticed that Id. trial judge while granting interim injunction had not considered three important conditions i.e., prima face case, balance of conveniences and irreparable loss, on that count it was ruled that the trial court had failed to exercise; jurisdiction on the question of well established principle of law, therefore, High Court has jurisdiction to interfere with the said order under Section 115 of the Code. 14. In the instant case as referred to hereinabove, the order dated 23.2.2001, even order dated 14.5.2002 are totally bereft of legal sanctity. The jurisdiction has not been exercised properly which in turn has caused miscarriage of justice and unnecessary hardship. 15. Learned trial court firstly has not disposed of the application after grant of ex parte temporary injunction within one month, so non compliance of Rule 3-A Order 39. Secondly the order was effective till next date though extended subsequently but even again not extended, partly arguments heard, on 14.5.2002, in the main suit awaiting appearance of the petitioner and while as in the application passing the order is glaring example of having acted in the exercise of its jurisdiction illegally and with material irregularity. 16. Secondly the order was effective till next date though extended subsequently but even again not extended, partly arguments heard, on 14.5.2002, in the main suit awaiting appearance of the petitioner and while as in the application passing the order is glaring example of having acted in the exercise of its jurisdiction illegally and with material irregularity. 16. Under such circumstances, even if application under Order 39 Rule 4 is not held maintainable, consequent order of rejection dated 07.04.2004 and appellate order dated 31.07.2006 justified but still while noticing the improper exercise of jurisdiction, this court has powers to peruse the record and to ascertain as to whether there has been proper exercise of jurisdiction, same is permitted under Section 115 of the Code, the court cannot afford to loose sight of the material irregularity and illegality committed by the trial court while passing the order of injunction dated 23.2.2001 and 14.5.2002, same are un-sustainable so are set aside, resultantly, order impugned dated 31.07.2006 as well as order of trial court dated 07.06.2004 loose significance so are reversed. 17. Accordingly, revision petition succeeds so is disposed of with the direction to the learned trial judge to dispose of the application for injunction afresh after hearing both the parties with reasonable dispatch preferably within months time from the date of receipt of the order. Till then for protecting the interests of the parties, status quo vis-a-vis suit property shall be maintained, i.e. the position prevalent on spot be not disturbed, it shall not in any way influence the trial judge in passing any appropriate order as may be warranted in accordance with the law. Copy of the order be sent to both trial court as well as appellate court for information and follow up. Subordinate record be also send back. Counsel for the parties shall appear before the trial court on 04.03.2008.