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2010 DIGILAW 405 (UTT)

RAJNEESH SINGH BAHRTARI v. SURYA PAL BHANDARI

2010-06-25

V.K.BIST

body2010
JUDGMENT Present appeal has been filed by the plaintiff/appellant against the order dated 08.02.2010 passed by the learned District Judge, Uttarkashi in Original Suit No. 03 of 2010 “Shri Rajneesh Singh Bhatrari vs. Shri Surya Pal Singh Bhandari and others” in which the learned District Judge observed that prima-facie no case is made out for ex-parte injunction and fixed 03.03.2010 for objection and disposal of interim injunction application. 2. Briefly stated that the plaintiff/appellant instituted a suit bearing O.S. No. 3 of 2010 “Shri Rajneesh Singh Bhartari vs. Shri Surya Pal Singh Bhandari and others” against the defendant/respondents for a decree of injunction not to interfere in the business of the plaintiff under the name and style of M/s Shivam Industries nor carry out any obstruction in the work of the stone crusher. In his plaint, the plaintiff/appellant came up with the case that in the year 2003, at the request and assurance of respondent no. 1, the plaintiff, respondent no. 1 and respondent no. 4 entered into a partnership business under the name and style of M/s Shivam Industries to establish stone crusher at village Ponti, Tehsil Barkot, District Uttarkashi. After completing all the necessary formalities for the same and to avoid any dispute, a written deed of partnership was duly executed on 18.06.2007 between the partners in the presence of the witnesses so that finances could be arranged for the same. Thereafter, the Industries Directorate, under the policy of the State Government, permitted for the establishment of the stone crushing industry on completing all the requisite norms. The plaintiff and his business partners i.e. defendant no. 1 and 4, in order to expand the business and fulfill the necessary government obligations, applied for a loan of Rs. 22 lacs for the effective working of the industry and the same was duly sanctioned and amount was released by the State Bank of India, Dehradun for the purchase of necessary machinery. It is further stated in the plaint that the stone crasher was duly installed and same came into action after obtaining requisite no objection certificate. At the request of defendant no. 4, the plaintiff acquired his entire liabilities as well as share, profit and loss in the said business vide declaration dated 24.11.2008. Therefore, under the changed circumstances a registered partnership agreement was executed and the same was registered. At the request of defendant no. 4, the plaintiff acquired his entire liabilities as well as share, profit and loss in the said business vide declaration dated 24.11.2008. Therefore, under the changed circumstances a registered partnership agreement was executed and the same was registered. The profit and loss shares of the partners were in the ratio of 60:40 wherein the plaintiff had major share. It is stated that the defendant no. 1 informed the plaintiff that the business is under loss, therefore the plaintiff moved an application before the District Magistrate, Uttarkashi regarding illegal activities of the defendants in which the Sub-Divisional Magistrate, Uttarkashi was appointed as the Enquiry Officer, who after enquiry made an observation that the defendant no. 1 had no interest in the said industry. During the said enquiry, the defendant no. 1 informed that he had created a new firm under the name and style of M/s Shivam Industries/Stone Crusher, alongwith his associates and the defendant no. 1 had no interest in the firm of the plaintiff. Alongwith the suit, the plaintiff moved an application (paper no. 4c-2) for grant of interim injunction restraining the defendant nos. 1 to 3 from interfering in the business of the plaintiff under the name of M/s Shivam Industries and not to carry out any obstruction in the work of the said stone crusher other than due process of law during the pendency of the suit. The learned District Judge in his order dated 08.02.2010 observed that prima facie no case is made out and fixed 03.03.2010 for objection and disposal of interim injunction application. Aggrieved with the order dated 08.02.2010, the appellant has preferred the instant appeal. 3. The defendant/respondent nos. 2 & 3 filed a counter affidavit mentioning therein that the appeal against the order dated 08.02.2010 is not maintainable. It is asserted in the counter affidavit that vide impugned order, the learned District Judge merely refused to give exparte injunction order in favour of the plaintiff but he did not reject the interim injunction application filed by the plaintiff under Order 39 Rule 1 & 2 of the Code of Civil Procedure and fixed the case for objection and disposal of interim injunction application. The interim relief application of the plaintiff is still pending disposal before the Court below. 4. I have heard Mr. Bhupesh Kandpal, Advocate for appellant, Mr. The interim relief application of the plaintiff is still pending disposal before the Court below. 4. I have heard Mr. Bhupesh Kandpal, Advocate for appellant, Mr. Pankaj Purohit, Advocate for the respondents and perused the entire material available on record. 5. Mr. Bhupesh Kandpaln, learned counsel for the appellant submitted that the plaintiff/appellant has completed the entire formalities to establish his business. The loan toward the bank was duly cleared by the appellant. The appellant is the owner of the stone crusher duly installed by him and the defendants have no right or authority to interfere or create any obstruction over the working and business of the stone crusher. He further submitted that the defendants also have no right, interest or authority to take over the duly established business of M/s Shivam Industries. In fact, the defendant no. 1 has deceived the plaintiff and by playing fraud, has created a new partnership firm identical to the name of old existing firm to usurp the business of existing firm. He argued that the learned District Judge failed to appreciate the fact that all the documents in support of the interim application were made part of the affidavit and in view of this fact, the District Judge should have allowed the 42-c application of the appellant. He further argued that the order of the Court below is without any basis as the provision of the law has been overlooked. He further submitted that by the impugned order dated 08.02.2010, while refusing to grant interim injunction, the learned District Judge has failed to exercise his jurisdiction vested in it by law. He prayed that interim injunction application of the plaintiff/appellant (paper no. 42-c) may be allowed and the respondent nos. 1 to 3 may be restrained from interfering in the business of the plaintiff under the name of M/s Shivam Industries and they may be restrained not to obstruct in the work of the said stone crusher other than due process of law during the pendency of the suit. Learned counsel for the appellant also submitted that no person should be left remedyless and therefore, appeal against an order of refusal to grant ex-parte injunction is maintainable. Learned counsel for the appellant also submitted that no person should be left remedyless and therefore, appeal against an order of refusal to grant ex-parte injunction is maintainable. In suppot of this submission he relied upon the judgments reported in (2007) 7 SCC 695, AIR 1984 Gauhati-87 (F.B.), 1998 (supp) RD 635, 2004 (56) ALR-771, AIR 2003 Bombay-392, 1996 AIHC-1593, AIR (38) 1951 Calcutta-446, AIR 1982 Sikkim-26 and AIR 2002 Gauhati 146. 6. On the other hand Mr. Pankaj Purohit, the learned counsel for respondents submitted that vide impugned order, the learned District Judge has merely refused to give ex-parte injunction order in favour of the plaintiff but he did not reject the interim injunction application filed by the plaintiff under Order 39 Rule 1 & 2 of the Code of Civil Procedure and fixed the case for objection and disposal of interim injunction application. He further submitted that under Order 43 Rule 1(r) C.P.C., only the orders passed under Rule-1, Rule-2, Rule-2A, Rule-4 or Rule-10 of Order 39 of C.P.C. are made appellable and since the order dated 08.02.2010 is not an order by which the interim relief application moved by the appellant/plaintiff is allowed or rejected, the appeal filed by the plaintiff/appellant is not maintainable. He also submitted that it is not the proper stage for the appellant to file an appeal. In support of his arguments Mr. Pankaj Purohit, Advocate relied on the judgment reported in 1999 (35) ALR-38, 2003, All. L.J. 1324, 2009(2) UD-221* and AIR 1992 MP-316. 7. For proper appreciation of the case, Rule 1, Rule 2, Rule 3 and Rule 3-A of Order XXXIX and Order XLIII Rule 1(r) of Code of Civil Procedure, 1908 are being reproduced hereinafter :- “Order XXXIX C.P.C. Rule 1, 2, 3, 3A 1. Cases in which temporary injunction may be granted.- Where in any suit it is proved by affidavit or otherwise.- (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors, (c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit. The Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders. 2. Injunction to restrain repetition or continuance of breach.- (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit, or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. (2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit. 3. (2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit. 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: Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant- (a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with- (i) a copy of the affidavit filed in support of the application; (ii) a copy of the plaint; and (iii) copies of documents on which the applicant relies, and (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent. 3A. Court to dispose of application for injunction within thirty days.- Where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application, within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability. Order XLIII Rule-1(r) 1. Appeal from orders.- An appeal shall lie from the following orders under the provisions of Section 104, namely :- (r) an order under Rule 1, Rule 2 [Rule 2A], Rule 4 or Rule 10 of Order XXXIX.,” 8. Rule 3 is an integral part of Rule 1 and 2 of Order XXXIX which lays down the procedure which is essential to be followed by the Courts where an application for injunction is filed under Rule 1 or Rule 2 of Order XXXIX. Rule 3 is an integral part of Rule 1 and 2 of Order XXXIX which lays down the procedure which is essential to be followed by the Courts where an application for injunction is filed under Rule 1 or Rule 2 of Order XXXIX. But where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting injunction would be defeated by delay. This is an exception given in Rule 3 of Order XXXIX. Order XLIII Rule 1(r) provides that an appeal lies from an order of the Trial Court if the order is passed in any of the rules specified in clause (r) of Order XLIII Rule-1. Thus, it is clear that no appeal lay against an order directing issue of notice under Rule 3 of Order XXXIX. 9. In view of above discussion, I am not in agreement with the case law of other High Courts cited by the learned counsel for the appellant, rather I am in agreement with the case law cited by the learned counsel for the respondent. Due care has already been taken in Rule 3 and Rule 3-A of Order XXXIX of C.P.C. The learned counsel for the appellant also placed reliance upon the judgment of Hon’ble Supreme Court, reported in (2000) 7 SCC 695 and argued that appeal filed by the appellant is maintainable. Paragraph 21 of the same is quoted below. “21. It is the acknowledge position of law that no party can be forced to suffer for the inaction of the Court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2-A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional Court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party which does not get justice due to the inaction of the Court in following the mandate of law must have a remedy. He cannot approach the appellate or revisional Court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party which does not get justice due to the inaction of the Court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3-A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant of vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate Court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate Court in complying with the provisions of Rule 3-A. In appropriate cases the appellate Court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule.” The Hon’ble Supreme Court in the aforesaid judgment has observed that where the mandate of Order XXXIX Rule 3-A of C.P.C. is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant of temporary injunction. But in the present case, there is no violation of Rule 3-A of Order XXXIX. 10. Appeal is dismissed. No order as to costs.