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2016 DIGILAW 2163 (ALL)

Shalini Verma v. Brijesh Chand Sinha

2016-06-08

NARAYAN SHUKLA, RAKESH SRIVASTAVA

body2016
JUDGMENT Shri Narayan Shukla and Rakesh Srivastava, JJ. – Heard Shri Akhilesh Kalra, learned counsel for the appellant and Shri Hemant Kumar Mishra, learned counsel appearing for respondent nos.1 and 2. 2. Counter affidavit filed today on behalf of respondent nos.1 and 2 is taken on record. 3. This First Appeal From Order has arisen against the order dated 31.05.2016 passed by the Civil Judge (Senior Division), Lucknow in Regular Suit No.932 of 2016, Brijesh Chand Sinha & Anr. v. Smt. Shalini Verma & Anr., by means of which the interim injunction has been granted. 4. The respondent nos.1 and 2 had filed a suit to declare the sale deed dated 19.06.2015 executed in favour of the appellant null and void and further to issue a decree of perpetual injunction against the appellant/ defendant restraining her from carrying out any work on the plot in question. The respondents had also filed an application for temporary injunction along with the suit upon which the learned court below had issued notices to the appellant/defendant. In pursuance of the notice the appellant/defendant had filed an objection dated 16.05.2016 along with written statement. On 16.05.2016, the trial court had issued a Commission by appointing the Court Ameen and fixed the next date as 23rd May, 2016 for filing objection if any to the report of Court Ameen as well as for disposal of the application for temporary injunction. Application for temporary injunction was registered as C-6. The next date was fixed as 25.05.2016 for disposal of the application and again on 28.05.2016, on which date the learned trial court heard the parties on the application and fixed 31.05.2016 for orders. 5. On 31.05.2016, the learned trial court issued interim injunction directing the parties to maintain status-quo over the land in dispute till the next date of listing and again fixed the next date as 6th July, 2016 for final disposal of the application registered as C-6. 6. 5. On 31.05.2016, the learned trial court issued interim injunction directing the parties to maintain status-quo over the land in dispute till the next date of listing and again fixed the next date as 6th July, 2016 for final disposal of the application registered as C-6. 6. Shri Akhilesh Kalra, learned counsel for the appellant has submitted that once pursuant to the notice the appellant/ defendant had submitted an objection against the application as well as had filed written statement and moreover, the court ameen was appointed for survey of the land in dispute, there was no occassion for the trial court to issue interim injunction without taking into consideration the objection filed by the appellant as well as commission's report but the trial court has done so and proceeded to issue ad interim injunction without considering the appellant's objection. He invited the attention of this Court towards the provisions of Order 39, Rule 3 of Civil Procedure Code, in which it is provided that the Court shall in all cases, except where it appears that the object of granting 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. It is further 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. 7. Whereas, in the present case, the appellant had already been noticed therefore, the trial court was under the obligation to consider the appellant's objection before issuing any such interim injunction. 7. Whereas, in the present case, the appellant had already been noticed therefore, the trial court was under the obligation to consider the appellant's objection before issuing any such interim injunction. He further submitted that after filing an objection, the application for temporary injunction should have been dealt with in exercise of powers provided under Order 39, Rule 1 of Civil Procedure Code, but obviously, the learned trial court has proceeded to issuing an ad interim injunction exercising the powers under Order 39, Rule 3 of Civil Procedure Code, thus he has alleged that the court below has committed manifest error of law in disposal of the application. 8. He further alleged that the order impugned is also without jurisdiction. 9. We have considered the submissions of learned counsel for the appellant and also perused the provisions laid down under Order 39 of the Civil Procedure Code. A bare perusal of the Rule 3 Order 39 shows that the learned trial court was empowered to pass an interim injunction even without notice to the defendant, where it appears that the object of granting injunction would be defeated by delay. 10. The respondents case is that the Lucknow Development Authority has exceeded its jurisdiction to execute the sale deed to the appellant for the area more than it owns or possesses that certainly tresspass his adjoining land and since the appellant is raising construction over there, it was utmost necessary to issue an interim injunction as has been issued by the trial court. 11. The learned trial court has fixed the next date for final disposal of the application for temporary injunction on 6th July, 2016. We are of the view that since the provisions of Order 39, Rule 3 , Code of Civil Procedure, empowers the court to grant injunction even without notice to the defendant, the Court has exercised its power. 11. The learned trial court has fixed the next date for final disposal of the application for temporary injunction on 6th July, 2016. We are of the view that since the provisions of Order 39, Rule 3 , Code of Civil Procedure, empowers the court to grant injunction even without notice to the defendant, the Court has exercised its power. Though one point is noticeable that once the appellant's objection against the application was on record, it would have been considered by him, but since the next date for final disposal of the application is fixed as 06.07.2016, at this stage, we would not like to interfere with the order impugned but observe for the trial court to decide the application finally on the next date itself, or if any legal impediment is there within next 30 days after considering the appellant's objection as well as affording an opportunity of hearing to the parties concerned. 12. With the aforesaid observations, the appeal is finally disposed of at the admission stage. Appeal disposed of.