Pippala Suvarna Saraswathi v. Bandaru Aruna Kumari
2020-01-23
G.SHYAM PRASAD
body2020
DigiLaw.ai
ORDER : G. Shyam Prasad, J. 1. This civil revision petition arises out of the order dated 1.4.2019 passed in Sr. No. 461 of 2019 in unnumbered CMA of 2019 on the file of the Court of District Judge, Srikakulam, filed against IA No. 40 of 2014 in OS No. 15 of 2014 on the file of the Court of Principal Junior Civil Judge, Srikakulam. 2. Heard Sri Tarlada Rajasekhar Rao, learned Counsel for the petitioner. 3. Before admission, notices have been served on the respondents and proof of service is filed, but none appears for respondents. 4. Hence, the matter is being disposed of on merits on hearing the Counsel for petitioner at the stage of admission. 5. The petitioner herein is the defendant and respondent is the plaintiff in OS No. 15 of 2014. The respondent filed IA No. 40 of 2014 for grant of temporary injunction. The Trial Court granted ex-parte temporary injunction in favour of the respondents on 10.2.2014 and the petitioner/defendant has field his counter on 18.6.2014 and since then, the IA is pending. 6. It is argued that as per the provision under Order XXXIX Rule 1-A CPC within one month of granting ex parte interim injunction, the application has to be disposed of. Since the interlocutory application has not been disposed of even after one month, the petitioner has filed an appeal before the Court of Principal District Judge, Srikakulam seeking for a direction to the Trial Court to dispose of the matter expeditiously. The said appeal has been rejected. 7. On a perusal of the order passed by the appellate Court, it does not appear that it was an order on merits. In fact, the Trial Court had granted ex parte interim injunction in favour of appellant. Since the same is pending on the file of the Trial Court, the petitioner preferred appeal against not passing orders in the interlocutory application. 8.
In fact, the Trial Court had granted ex parte interim injunction in favour of appellant. Since the same is pending on the file of the Trial Court, the petitioner preferred appeal against not passing orders in the interlocutory application. 8. It is appropriate to refer to the provisions under Order XXXIX Rule 3-A CPC, which reads as under: "Rule 3-A Order XXXIX of Code of Civil Procedure, 1908 "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." 9. Learned Counsel for the petitioner relied on the decision of the Apex Court in A. Venkatasubbaiah Naidu v. S. Challappan and others, 2001 (1) ALD 32 (SC) : 2000 (6) Supreme 269 , Para 21 of the order reads as under: "21. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the Court or its omission 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. 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 or vacation of a temporary injunction against the order remaining in force.
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 or 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." 10. In the above decision, the provision under Order XXXIX Rule 3-A CPC is interpreted by the Apex Court observing that in an appropriate case, the appellate Court apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the judicial officer including recommending for making an adverse entry in bis ACR. The application of temporary injunction shall for the purpose of appeal deemed to be final order passed on the application for temporary injunction on the date of expiry of 30 days mentioned in the Rule. 11. In the instant case, on 10.2.2014 ex parte interim orders were passed in the suit. On 18.6.2014 the respondent has filed his counter almost after four months and sought for disposal of the injunction petition. The injunction petition was not disposed of by the Trial Court even after filing of the counter. Therefore, preferred this appeal for a direction to dispose of the injunction petition as per the provisions under Order XXXIX Rule 3-A CPC. The appellate Court has rejected the appeal on 1.4.2019, on the ground that it is the cause of action for filing the present revision petition. 12. In the light of the provisions of Order XXXIX Rule 3-A CPC the Trial Court ought to have disposed of the application within 30 days after granting interim injunction.
The appellate Court has rejected the appeal on 1.4.2019, on the ground that it is the cause of action for filing the present revision petition. 12. In the light of the provisions of Order XXXIX Rule 3-A CPC the Trial Court ought to have disposed of the application within 30 days after granting interim injunction. The respondent has filed his counter on 18.6.2014 in the injunction application, which is beyond one month of getting the interim injunction. Even then the Trial Court has not disposed of the injunction petition, which is a clear violation of provisions under Order XXXIX Rule 3-A CPC. 13. Therefore, it is obvious that the Trial Court has not followed the mandate under the said provision even after the respondent had filed his counter. Therefore, the petitioner has approached the appellate Court. Even the appellate Court also did not consider the appeal in proper perspective in the light of Order XXXIX Rule 3-A CPC and rejected it. 14. In the light of the foregoing reasons, it is needless to say that it is the duty of the Trial Court to dispose of the injunction application within 30 days where the injunction has been granted by giving notice to opposite party. In fact, the Court shall make an endeavour to dispose of the application within 30 days from the date of granting injunction and the Court shall record its reasons, if it fails to do so. There are no plausible reasons for consideration. Even after one month of the granting of the interim injunction, the Trial Court has not disposed of the application and no acceptable reasons are given. Even after filing of the counter by the respondents, the Trial Court is not making any endeavour to dispose of the application. Therefore, the order passed by the appellate Court rejecting the appeal without considering the same, is not in accordance with law. Virtually the petitioner could not get an order either from Trial Court or from appellate Court. The very purpose of filing of the appeal is only for a direction to the Trial Court to dispose of the IA, was not fulfilled. The appellate Court in fact rejected the appeal. Therefore, the Trial Court is hereby directed to dispose of the application expeditiously, if the application is still pending. 15. With these observations, the civil revision petition is disposed of. No costs. 16.
The appellate Court in fact rejected the appeal. Therefore, the Trial Court is hereby directed to dispose of the application expeditiously, if the application is still pending. 15. With these observations, the civil revision petition is disposed of. No costs. 16. Miscellaneous petitions pending if any, shall stand closed.