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Uttarakhand High Court · body

2010 DIGILAW 801 (UTT)

Sukh Ram v. Incharge District Judge Dehradun & Another

2010-11-10

TARUN AGARWALA

body2010
Tarun Agarwala, J.;- Heard Sri L.P. Naithani, the learned senior counsel assisted by Sri K.N. Joshi, the learned counsel for the petitioner. 2. The petitioner is the defendant and has filed the present writ petition against an order granting an exparte injunction by the lower appellate court. It transpires that a suit for permanent injunction and for possession was filed by the plaintiff against the defendant-petitioner. This suit was dismissed eventually by a judgment dated 8.10.2010, against which, the plaintiff preferred an appeal which was also accompanied by an application under Order 39 Rule 1 & 2 of the Code of Civil Procedure. The appellate court, while entertaining the appeal, also granted an exparte injunction by an order dated 15.10.2010. The petitioner, being aggrieved by the grant of the exparte order, has filed the present writ petition. 3. The learned counsel for the petitioner submitted that the exparte interim injunction is in gross violation of the mandatory provision as provided in the proviso to Order 39 Rule 3 of the Code of Civil Procedure. The learned counsel submitted that the lower appellate court has not recorded any reasons while granting the injunction and consequently, on this short ground itself, the 2 order should be set aside. In support of his submission, the learned counsel placed reliance upon a decision of the Supreme Court in Shiv Kumar Chadha vs. Municipal Corporation of Delhi and others, 1993 (3) SCC 161 , wherein the Supreme Court held as under: “32. Power to grant injunction is an extraordinary power vested in the court to be exercised taking into consideration the facts and circumstances of a particular case. The courts have to be more cautious when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in all cases the court shall, before grant of an injunction, direct notice of the application to be given to the opposite party, except where it appears that object of granting injunction itself would be defeated by delay. That is why Rule 3 of Order 39 of the Code requires that in all cases the court shall, before grant of an injunction, direct notice of the application to be given to the opposite party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying 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…”. 33. It has come to our notice that in spite of the aforesaid statutory requirement, the courts have been passing orders of injunction before issuance of notices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance can be made by the other side that court has prejudged the issues involved in the suit. According to us, this is a misconception about the nature and the scope of interim order. It need not be pointed out that any opinion expressed in connection with an interlocutory application has no bearing and shall not affect any party, at the stage of the final adjudication. Apart from that now in view of the proviso to Rule 3 aforesaid, there is no scope for any argument. When the statute itself requires reasons to be recorded, the court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant.” 4. No doubt, the provision of Order 39 Rule 3 of the C.P.C. is salutary and mandatory in nature. The court, before issuing notice to the opposite party, if it finds that an exparte injunction is required to be given, is necessarily required to give reasons where the court finds that the object of granting the injunction would be defeated by the delay in issuing notice to the opposite party. In the present case, the court finds that an order of status-quo was operative against the defendant throughout the pendency of the suit which was instituted in the year 2004. In the present case, the court finds that an order of status-quo was operative against the defendant throughout the pendency of the suit which was instituted in the year 2004. The injunction order granted by the trial court continued to operate till the disposal of the suit. The appellate court, while issuing the injunction recorded the fact that the defendant was in possession and considering that aspect, directed the parties to maintain status-quo. In my opinion, the reasons given, howsoever brief it was, was in consonance with the provision of Order 39 Rule 3 of the C.P.C. and consequently, the Court, considering this aspect coupled with the fact that the interim order was operating against the petitioner throughout the pendency of the suit, is not inclined to interfere in a writ jurisdiction. 5. The writ petition is accordingly dismissed. 6. However, the Court directs that in the event, the petitioner appears and files his objection to the grant of an injunction along with the stay vacating application before the lower appellate court, the 4 lower appellate court will decide the injunction application along with the stay vacating application of the petitioner by a reasoned and speaking order after hearing all parties concerned within three weeks from the date of filing such application.