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2010 DIGILAW 409 (JK)

Anant Ram v. Isher Dass

2010-07-23

Hasnain Massodi

body2010
1. The petitioner on 21.1.2007 commenced a Civil Suit against the respondents in the Court of Sub Judge Udhampur for recovery of an amount of Rs.3000/-from the respondents as damages for illegal dismantling of the compound wall, details whereof were given in the plaint. The petitioner also asked for permanent injunction decree perpetually restraining the respondents from interfering with the suit compound or any construction "of his choice" raised by the petitioner on the suit land. Alongside the suit the petitioner filed an application for grant of ad-Interim injunction. The Trial Court on the date of institution of the suit and temporary injunction application, granted temporary injunction in favour of the petitioner and temporarily restrained the respondents from causing any interference in construction of the compound wall raised by the petitioner to fence the suit property. The operative part of the interim injunction dated 22.1.2007 reads as under: "In the meantime defendants/ non-applicants are temporarily restrained from causing any interference in the construction of compound walling being raised by the plaintiff/applicant in the suit property referred above. This order is however subject to objections from the other side. Plaintiff/ applicant is directed to supply copy of the plaint and documents annexed herewith to the defendants/non-applicants alongwith the copy of order and file a service affidavit to this effect forthwith in terms of order 39 rule 3 (a) (b) CPC." 2. The ad-interim injunction order dated 22.1.2007 was followed by an order dated 29.1.2007 directing Additional S.P Udhampur, and officer Incharge Police Station Rehambal, to implement the ad-interim injunction on spot, without fail and submit compliance report. Copy of the order was directed to be forwarded to the aforementioned Police officers for strict compliance. However, the Trial Court did not take any steps to finally dispose of the temporary injunction application within one month after exparte injunction was passed as is mandated by order 39 Rule 3-A, though the respondents entered appearance and even filed their objections on 6.2.2007. 3. The respondents aggrieved of exparte ad-interim injunction order dated 22.1/2007 filed a civil miscellaneous appeal on 8.3.2007 in the Court of Pr. District Judge, Udhampur. The Appellate Court vide order dated 30.8.2007 set aside the Trial Court order dated 22.1.2007 remanded the matter and asked the Trial Court to pass fresh orders and also restore the position on spot, to the position as it existed prior to commencement of the suit. District Judge, Udhampur. The Appellate Court vide order dated 30.8.2007 set aside the Trial Court order dated 22.1.2007 remanded the matter and asked the Trial Court to pass fresh orders and also restore the position on spot, to the position as it existed prior to commencement of the suit. 4. The Appellate Court order dated 30.8.2007 is assailed in the present Civil Revision Petition on the grounds that the order is against law and facts and liable to be set aside. It is insisted that the order of the Trial Court dated 22.1.2007 fell within jurisdiction of the Trial Court and that the Trial Court while passing the order set-aside in appeal, exercised discretion in a lawful manner warranting no interference from the Appellate Court. The Trial Court, it is pleaded, was alive to the fundamental principles that govern exercise of discretion under order 39 CPC. The matter being of emergent nature, it is averred, the Trial Court rightly dispensed requirement of notice prior to grant of ad-interim injunction. It is pleaded that the order of the Trial Court being subject to objections, the Appellate Court ought to have taken its hands off the matter and permitted the Trial Court to decide the temporary injunction application. The order dated 29.1.2007 is being justified on the ground that the Trial Court confronted with disobedience of the order dated 22.1.2007, was left with no option but to direct the police to ensure compliance of the ad-interim injunction order on the spot. The petitioner also questions competence of the Appellate Court to direct restitution of the position as on the date of commencement of the suit on the ground that section 144 was not applicable to an order made on a temporary injunction application and the provision was restricted in scope, to the reversal of a decree and that only the court that passes decree is clothed with the powers to press into service section 144 CPC. 5. I have gone through the revision petition as also the order impugned and have heard Ld. Counsel for the parties. 6. Order 39 Rule 1 CPC enumerates the cases in which temporary injunction may be granted. It reads as under : "Cases in which temporary injunction may be granted Where in any suit it is proved by affidavit or otherwise. I have gone through the revision petition as also the order impugned and have heard Ld. Counsel for the parties. 6. Order 39 Rule 1 CPC enumerates the cases in which temporary injunction may be granted. It reads as under : "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, the Court may by order grant a temporary injunction to restraint such act, or make such other order for the purpose of staying and pre venting 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, (c) that the defendant threatens to dispossess the plaintiff or otherwise causes injury to the plaintiff in relation to any property in dispute in the suit. A bare look at order 39 Rule 1 CPC makes it clear that a purpose and object of the provision, is to preserve the subject matter of the suit so that the parties claiming their rights over the subject matter have an opportunity to substantiate their respective stand and the party at the end of Trial found entitled to the relief, is in a position to reap the fruits of litigation. In case the suit property is allowed to be wasted, damaged or alienated the trial itself shall become infructuous and purposeless. 7. Let us see whether the threshold order made by Ld. Trial Court was in the nature of preservation of the suit property and aimed at projecting against any damage or waste. 8. The petitioner’s case before the Trial Court was that the petitioner was in possession of suit property; that the petitioner proposed to raise construction on and around the suit property including a fencing wall and that the respondents were interfering in petitioner’s possession over the suit property as also in the proposed construction. 8. The petitioner’s case before the Trial Court was that the petitioner was in possession of suit property; that the petitioner proposed to raise construction on and around the suit property including a fencing wall and that the respondents were interfering in petitioner’s possession over the suit property as also in the proposed construction. The Trial court on the very date the temporary injunction application was filed, granted the temporary injunction in favour of the petitioner and against the respondents inter alia restraining the respondents from causing any interference in the construction of compound wall being raised by the petitioner. The Trial Court did not realize that the Trial Court was in effect granting final relief claimed in the suit at the very threshold. Once the petitioner was allowed to raise construction on the suit land, nothing substantial was left in the suit that was yet to be taken to the take off stage. The trial Court did not find it necessary to at least ask the respondents to undertake to demolish the construction raised in the event the petitioner failed to succeed in the suit. This apart once the Trial Court decided to grant an injunction without giving notice to the opposite party, it was incumbent upon the Trial Court to decide the temporary injunction application within one month from the date the temporary injunction was granted in exparte. 9. Order 39 Rule 3 CPC prohibits grant of an injunction without notice to the opposite party. In other words once a temporary injunction application is filed, the court is required to direct notice of the application for grant of injunction to be given to the opposite party. The only exception to the general rule is the case where in the opinion of the court the object of granting injunction would be defeated by delay in which case the court may grant an injunction without giving notice to the opposite party. However, the power is to be exercised subject to the rider that the reasons are recorded in support of the opinion that the object of granting the injunction would be defeated by delay. However, the power is to be exercised subject to the rider that the reasons are recorded in support of the opinion that the object of granting the injunction would be defeated by delay. The court is further duty bound to ask the applicant to deliver/send by registered post to the opposite party copy of the application for injunction and copies of other material detailed in Order 39 Rule 3 (a) (i to iii) and file an affidavit that the mandate of aforementioned provision has been followed. It is in addition to said duty that Order 3 Rule 3 (a) enjoins upon the court to decided the application for injunction within 30 days from the date on which the injunction was granted. 10. In the instant case the Trial Court after granting injunction in exparte, failed to follow mandate of Order 39 Rule 3 proviso as also, order 39 Rule 3(a) CPC. The 1st. Appellate Court has rightly set aside order dated 30.08.2007 remanded the matter and asked the Trial Court to dispose of the matter afresh. The order of the Appellate Court to the extent it set aside the order of the Trial Court dated 22.1.2007 granting injunction in exparte, is in accordance with the law and neither amounts to irregular exercise of Jurisdiction nor results in failure of justice. The Civil Revision petition to the said extent deserves to be dismissed. 11. The 1st. Appellate Court, however, was not right in asking the Trial Court to order restoration of position on spot, as it existed prior to the commencement of the suit. In the first place once the Trial Court is asked to dispose of temporary injunction application afresh, it is to be left to the Trial Court to order restoration of the position on spot to the position prior to institution of the suit, in the event the Trial Court does not find merit in the temporary injunction application and it is further established that the petitioner taking cover of exparte injunction order has materially changed the position on spot. It was not appropriate for the Appellate Court to make room for fresh consideration of the matter and at the same time ask restoration of the position presuming that the petitioner had no case and further that position on spot was changed by the petitioner. It was not appropriate for the Appellate Court to make room for fresh consideration of the matter and at the same time ask restoration of the position presuming that the petitioner had no case and further that position on spot was changed by the petitioner. Secondly the powers under section 144 CPC are to be exercised at the instance of the party entitled to any benefit by way of restitution so as to place the parties in the position which they would have occupied but for the order set aside and lastly such power is to be exercised by the court which passed the decree or the order varied or reversed in an appeal. In the present case the Appellate Court had neither jurisdiction nor any lawful justification for directing the Trial Court to order restoration of the position as it existed prior to commencement of the suit. The Appellate Court thus has made irregular exercise of jurisdiction while asking the Trial Court to restore the position on spot. The order of the Trial Court in the said extant is set aside. 12. The Civil Revision is disposed of accordingly. The parties shall appear before the Trial Court on 02.08.2010. The Trial Court shall take all possible steps to dispose of the temporary injunction application within 30 days from the aforesaid date. Disposed of.