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2011 DIGILAW 477 (UTT)

SHASHI BHUSHAN v. PRADEEP KUMAR

2011-07-29

B.S.VERMA

body2011
JUDGMENT Heard learned counsel for the parties and perused the record. 2. Respondent Nos. 4 to 9 are proforma respondents. 3. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 14.3.2007 passed by the Incharge District Judge, Dehradun in Civil Revision No. 39 of 2007, Pradeep Kumar and others Vs. Shashi Bhushan and others (Annexure No. 1 to the writ petition). 4. Briefly stated, the facts giving rise to the present writ petition are that the petitioner-plaintiffs filed Original Suit No. 937 of 2006 against the defendants-respondents no. 1, 2 and 4 to 9 in the Court of Civil Judge (Junior Division) Dehradun for a decree of permanent injunction restraining the defendants from interfering in the possession of the plaintiffs over the property described in Schedule 'Ka' and 'Kha' of the plaint. Along with the suit, an application under Order 39, Rules 1 and 2 C.P.C. (paper no. 6-C2) was also moved by the plaintiff-petitioners. 5. It appears that the trial court after hearing the petitioners passed an ex parte temporary injunction order in favour of the plaintiff thereby restrained the defendant-respondents from interfering in the property in question by order dated 30.11.2006 and issued notices to the defendants to file objection under Order 39, Rule 4 C.P.C., fixing 9.12.2006 for disposal. It also appears that the defendant-respondent preferred counter claim in their written statement and also filed an application (paper no. 46-C) with a prayer of temporary injunction against the plaintiffs. The trial court passed an order that the application be put up on the date fixed. Aggrieved by that order, the defendant no. 1 and 3-respondent nos. 1 and 2 herein preferred Civil Revision No. 39 of 2007 before the District Judge, Dehradun. The revisional court heard the learned counsel for the revisionist-respondents and has observed in its order that the revision is not maintainable against the order impugned 30.11.2006, but in the impugned order the revisional court itself, while directing the trial court to dispose of the applications 6-C and 46-C without further delay, has observed that in continuation of order dated 30.11.2006 passed on application No. 6-C moved by the plaintiff-petitioners, the plaintiffs are also restrained not to create any interference and raise construction or create any obstruction on the disputed land. Undisputedly, this order has been passed by the revisional court against the plaintiff-petitioners without hearing them, in whose favour ex parte injunction order dated 30.11.2006 had been passed by the trial court, after holding that a prima facie case to grant ex parte injunction order is made out in favour of the plaintiff. On the one hand, the revisional court itself found that there is no need to admit the revision for hearing, but on the other hand, it has passed an order against the plaintiff-petitioners in continuation of the order dated 30.11.2006 whereby ex parte injunction was granted in favour of the plaintiffs and notices were issued to the defendants on the application for grant of temporary injunction filed under Order XXXIX, Rules 1 and 2 C.P.C.. 6. Counter affidavit has been filed on behalf of the respondent nos. 1 and 2. Along with the counter affidavit, the respondents have annexed copy of the counter claim preferred along with the written statement, copy of objection filed against the application paper no. 6-C and application 46-C, filed by the respondent nos. 1 and 2 as Annexure CA-1, CA-2 and CA-3 to the counter affidavit. 7. I have perused the material placed before this Court including memo of writ petition and the counter affidavit along with its annexures and the impugned order passed by the revisional Court. 8. Learned counsel for the petitioners has contended that the impugned order dated 14.3.2007 passed by the revisional court is without jurisdiction in to-to, as the revision was not maintainable against the order granting ex parte temporary injunction by the trial court and the revisional court could not have disturbed the ex parte temporary injunction order passed by the trial court in favour of the plaintiffs-petitioners. In support of his contention, learned counsel for the petitioners has relied upon a Division Bench judgment of the Allahabad High Court in the case of Ram Dhani and others Vs. Raja Ram and others [2011(87) ALR, Page 66]. The following question came for consideration before the Division Bench of the Allahabad High Court in that case:- "Whether a revision under section 115 of the Code of Civil Procedure is maintainable against an order issuing a notice to the defendant on an application fora grant of a temporary injunction filed under OrderXXXIX, Rules 1 and 2 of the Code of Civil Procedure?" 9. While answering the above question, the Division Bench has held in paragraph 20 as under: - "20. From the discussion above, for an order to be revisable under section 115, C.P.C., as is applicable in the State of U. P., firstly it must be an order which must decide a part of the case or the proceedings. The expression "order" as it is defined in the C.P.C., requires determination which must bring finality by determining the rights of the parties in respect of the controversy in the application. OrderXXXIX, Rule 3 is a duty conferred on the Court before granting an injunction to issue notice to the party. It is a procedural provision, a step in the case. The Court, in the event, arrives at a conclusion that the grant of ex parte injunction would be defeated by delay, can in the case of urgency proceed to grant an injunction under Order XXXIX, Rule 1 or Order XXXIX, Rule 2. If the injunction is granted or rejected, as observed earlier, it would be appealable under Order XLIII. The procedure followed under Order XXXIX, Rule 3 is determination by the Court of the urgency of the matter vis-a-vis the relief claimed by the plaintiff. On a failure to grant the injunction, no part of the case or the proceeding is disposed of, but the proceedings merely stand adjourned to the next date. In other words a step in the case or proceedings. In these circumstances, in our opinion, it cannot be said that, by merely issuing notice on arriving at a finding that there is no urgency, the same amounts to an "order" within the meaning of section 2(14), C.P.C. In that context, the question of applying Rule 3 (ii) of section 115 would not come into play. That can only be applicable if the other precondition of 'an order deciding the case' are satisfied. Therefore, merely issuing a notice on arriving at a conclusion that there is no urgency would not be an order which is revisible. It is not, as if a party is without a remedy if such a view is taken. The extraordinary jurisdiction of this Court under Article 227 of the Constitution of India would always be available in such a case." 10. The Division Bench of the Allahabad High Court has answered the question in negative and held that a revision would not be maintainable. The extraordinary jurisdiction of this Court under Article 227 of the Constitution of India would always be available in such a case." 10. The Division Bench of the Allahabad High Court has answered the question in negative and held that a revision would not be maintainable. 11. It is well settled that if the revision is not admitted for hearing, the Court has no jurisdiction to pass an interim order. 12. For what has been stated above, I am of the considered view that the order passed by the revisional Court is bad in law in so far as the restraint order has been passed against the plaintiff-petitioners in continuation of the order dated 30.11.2006 on paper no. 6-C, particularly when the revision itself was not maintainable in the case at hand according to the revisional Court and as has been held by the Division Bench of the Allahabad High Court in the case of Ram Dhani (supra). The writ petition, therefore, deserves to be allowed. 13. The writ petition is allowed. The impugned order dated 14.3.2007 is set aside. However, the trial court is directed to dispose of the application (paper no. 6-C) moved by the plaintiffs and application (paper no. 46-C) moved by the defendant-respondents on merits in accordance with law after hearing both the parties, if the same have not yet been decided, expeditiously, preferably within a period of eight weeks from the date of production of a certified copy of this order. Unnecessary adjournments in the case shall be avoided, since the ex parte injunction order was granted in the year 2007. 14. All pending applications stand disposed of.