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2021 DIGILAW 370 (UTT)

Rekha Negi v. Dimple Negi

2021-07-26

ALOK KUMAR VERMA, RAGHVENDRA SINGH CHAUHAN

body2021
JUDGMENT Raghvendra Singh Chauhan, CJ. - The defendants-appellants have challenged the legality of the order, dated 10.06.2021, passed by the learned Principal Judge, Family Court, Dehradun, whereby the learned Principal Judge has granted an ex parte temporary injunction order in favour of the plaintiffs-respondents, Smt. Dimple Negi, and Km. Pari Negi. 2. Briefly, the facts of the case are, that the plaintiffs-respondents, Smt. Dimple Negi, and Km. Pari Negi, had filed a civil suit before the Family Court for seeking a declaration that the plaintiffs are the legal heirs of Late Mr. Vishamber Singh; they have the right and interest in the movable and immovable properties of Mr. Vishamber Singh after his death. They had also sought a declaration that they are entitled to the death benefits which would be released by the Oil and Natural Gas Corporation (for short "the ONGC"), defendant No.4. They had further sought a permanent injunction in their favour against defendant Nos.l to 3, who according to the plaintiffs were the first wife of Late Mr. Vishamber Singh, and his two children from the first wife. 3. According to plaintiff No.l, she met Mr. Vishamber Singh through Facebook. They fell in love with each other. He informed her that his first wife had expired, and his two children were staying with their grandparents. Therefore, he is looking for a companion for himself. The plaintiff No.l, and Mr. Vishamber Singh got married on 15.10.2016 at Gurudwara Shri Guru Singh Sabha, situated at Mahinder Park, Delhi. At the time of marriage, while the plaintiff No.l was residing in Delhi, Mr. Vishamber Singh was residing in Dehradun, and working with the ONGC. After the marriage, Mr. Vishamber Singh brought the plaintiff No.l to his house situated at Yamnotri Enclave Store, Phase-II, Chanderbani Road, near Kothari General Store, Dehradun. During the marriage, the plaintiff No.l, and Mr. Vishamber Singh were blessed with a daughter on 19.09.2018. A few years after their marriage, and after the birth of their daughter, Mr. Vishamber Singh informed the plaintiff No.l that he had lied about his first wife (defendant No.l in the Civil Suit). It is not that she had died, but he had taken divorce from her. He further informed that he had already settled the permanent alimony with his first wife. Unfortunately during the COVID-19 pandemic, Mr. Vishamber Singh died on 12.05.2021. After the death of Mr. It is not that she had died, but he had taken divorce from her. He further informed that he had already settled the permanent alimony with his first wife. Unfortunately during the COVID-19 pandemic, Mr. Vishamber Singh died on 12.05.2021. After the death of Mr. Vishamber Singh, the plaintiffs approached the ONGC for completing the formalities pertaining to the death benefits. However, she was shocked to know that the name of Mr. Vishamber Singh's first wife, i.e. the name of the defendant No.l, Smt. Rekha Negi, continued to be recorded in the official record of the ONGC. 4. The plaintiff No.l further claimed that, immediately, after the death of Mr. Vishamber Singh, on 26.05.2021, the defendant Nos.l and 2 came to her house, and told her to immediately vacate the house, failing which she would face dire consequences. Moreover, subsequently, on 27.05.2021, she has learnt that the defendant No.l is planning to sell the house. When she questioned the defendant Nos.l and 2 as to why they are planning to sell the house, she was again threatened by defendant No.2. Consequently, in order to save her life and property, the plaintiff filed a complaint before the Senior Superintendent of Police, Dehradun. But, so far, no action has been taken by the police. 5. The plaintiff further claimed that on 30.05.2021, defendant Nos.l and 2 came with anti-social people, and forcefully tried to evict the plaintiffs from the ground floor. They further illegally entered the first floor of the said property. Ever since then, the defendants Nos.l to 3 are staying in the first floor. They continued to threaten the plaintiffs. Therefore, the plaintiffs have filed a Suit for declaration and permanent injunction. Along with the Suit, the plaintiffs filed an application for temporary injunction. 6. By order dated 10.06.2021, the learned Principal Judge, Family Court, granted an ex-parte injunction order in favour of the plaintiffs. Hence, this appeal before this Court. 7. Mr. Neeraj Garg, the learned counsel for the appellants, submits that according to Order XXXIX Rule 3 of the C.P.C., before any injunction can be granted, it is essential that a notice to the defendant should be issued by the Court. However, in the present case, an ex-parte injunction order has been passed by the learned Principal Judge, Family Court, without issuing a notice to the defendants. Therefore, the said injunction order is legally unsustainable. 8. However, in the present case, an ex-parte injunction order has been passed by the learned Principal Judge, Family Court, without issuing a notice to the defendants. Therefore, the said injunction order is legally unsustainable. 8. Heard the learned counsel for the appellants, and perused the impugned order. 9. Order XXXIX Rule 3 of the C.P.C. is as under:- "3. Before granting injunction, Court to direct notice to opposite party.-The Court shall in all cases, except where it appears that the object of granting the 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: [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.]" 10. A bare perusal of the provision clearly reveals that an ex-parte injunction order can be passed where it appears that the object of granting an injunction would be defeated by the delay. Therefore, the learned counsel for the appellants is unjustified in claiming that no ex-parte injunction order can be granted by the Court. 11. In the present case, the learned Family Court has noticed the fact that both the plaintiffs and defendants are staying in the same property. According to the plaintiffs, the defendants have illegally entered the first floor of the property. Moreover, the defendant No.l is trying to sell off the property. Furthermore, the defendant Nos.l and 2 are trying to compel the plaintiffs to vacate the said property. In these circumstances, it was imperative that an ex-parte injunction order be passed in favour of the plaintiffs. Moreover, the defendant No.l is trying to sell off the property. Furthermore, the defendant Nos.l and 2 are trying to compel the plaintiffs to vacate the said property. In these circumstances, it was imperative that an ex-parte injunction order be passed in favour of the plaintiffs. Lest the plaintiffs be ousted from the ground floor of the property by selling out the property by the defendant Nos.l and 2 to the third party. 12. As noted by the learned Family Court, if the property were sold by the defendant Nos.l and 2 to a third party, it would create a third party rights. Unnecessarily, it would lead to multiplicity of litigation. Therefore, considering the urgency of the situation, the learned Family Court was certainly justified in passing an ex-parte injunction order in favour of the plaintiffs. Further, an ex-parte injunction order has been passed only till the next date fixed in the matter. Therefore, the learned counsel for the appellants is unjustified in trying to paint a picture, as though a permanent injunction has been passed by the learned Family Court without giving an opportunity of hearing to the defendants-appellants. 13. For the reasons stated above, this Court does not find any merit in the present appeal. It is, hereby, dismissed.