Cosmopolitan Club vs Vinayak Kripa Inframart Co. (P.) Ltd.

Ashok Bhushan and Bala Krishna Narayana, JJ.—Heard Sri Nikhil Agrawal, advocate, assisted by Sri Rahul Agrawal for the Appellant and Sri Shashi Nandan, senior advocate assisted by Sri Vishnu Gupta, advocate appearing for the Respondent.

By consent of the parties, we proceed to hear the appeal finally and dispose of it finally.

This first appeal from order under Order XLIII, Rule 1 (r) of the CPC has been filed challenging the order dated 29.4.2010 passed by the Civil Judge (Senior Division), Allahabad granting temporary injunction. The Appellant is Defendant in the suit. Suit No. 637 of 2010 was filed by the Plaintiff/Respondent on 26.4.2010 on which date the trial court issued notice on application 6C fixing 29.4.2010. On 29.4.2010 the Court noticed the endorsement on the notice that Defendant after seeing the notice informed that he will appear on the date fixed but refused to sign the notice. No one appeared on behalf of the Defendant on 29.4.2010. The Court considered the claim of the Plaintiff that the Plaintiff has purchased the property and Defendant is changing the structure of the premises. The copy of the sale-deed and photograph of spot was filed by the Plaintiff. The Court directed the case to be put up on date fixed, i.e., 1.7.2010, and in the meantime, Defendant was directed to maintain status quo over the property in dispute. Learned Counsel for the Appellant challenging the order contended that the notice was never tendered to the Defendant and the trial court without adverting to the necessary ingredients for grant of temporary injunction and without recording any finding with regard to ingredients of prima facie case, balance of convenience and irreparable loss granted temporary injunction. Learned Counsel for the Appellant has placed reliance on a judgment of the Apex Court in Kishorsinh Ratansinh Jadeja Vs. Maruti Corp. and Others, .

Sri Shashi Nandan, senior advocate appearing for the Respondent contended that this appeal is not maintainable under Order XLIII, Rule 1 (r) since no final order has been passed under Order XXXIX, Rule 1, CPC and at best to the impugned order is referable to Section 151, CPC and till final decision is taken on application 6C the order is not appealable. He further contends that under the provisions of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, the tenant is not entitled to carry on even repairs without giving notice to the landlord. He submits that major structural changes are being undertaken by the Defendant and, hence, the injunction has rightly been granted by the trial court.

We have considered the submission of the learned Counsel for the parties, and perused the record.

First contention of the learned Counsel for the Respondent that the appeal is not maintainable, is to be considered first. Submission of the learned Counsel for the Respondent is that against an order under Order XXXIX, Rule 1, an appeal under Order XLIII, Rule 1 (r) shall lie only when application for temporary injunction is finally decided. Provision of Order XXXIX, Rule 1 and provisions of Order XLIII, Rule 1 (r) are as follows:

Order XXXIX, Rule 1. Where in any suit it is proved by affidavit or otherwise-

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the Defendant threatens or intends to remove or dispose of his property with a view to defraud his creditors. the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders.

Order XLIII. Rule 1. An appeal shall lie from the following orders under the provisions of Section 104, namely:

xxx

(r) an order under Rule 1, Rule 2, Rule 4 or Rule 10 of Order XXXIX.

Order XXXIX, Rule 1, CPC provides for cases in which temporary injunction may be granted. The grant of temporary injunction under Order XXXIX, Rule 1 may be grant of temporary injunction ex parte or may be grant of injunction after service of notice or an injunction finally disposing of the application 6C. The Order XXXIX, Rule 1 is the source of power for grant of temporary injunction. The temporary injunction cannot be bifurcated or divided in the manner as contended by the counsel for the Respondent. An order of temporary injunction under Order XXXIX, Rule 1 which has been granted by the impugned order cannot be said to have been passed u/s 151, CPC when there is specific provision under Order XXXIX, Rule 1. The Court itself has passed the order on the application 6C and 29.4.2010 was a date fixed for the application 6C. Hence, the order dated 29.4.2010 is an order passed on 6C application, i.e., application for temporary injunction. Now, the submission of the counsel for the Respondent that appeal shall lie only against an order disposing of application 6C is to be considered. Order XLIII, Rule 1 (r) as noticed above provides appeal from an order under Rule 1, Rule 2, Rule 2 (a), Rule 4 or Rule 10 of the Order XXXIX. The order under Rule 1 cannot be said to be an order finally disposing of an application 6C. No such interpretation can be put to an order which is referable to Order XXXIX, Rule 1. After grant of an injunction, under Order XXXIX, Rule 4 the injunction order may be discharged, varied or set aside. The order of both of ex parte interim injunction or interim injunction after notice or interim injunction after deciding the application 6C are all the interim injunction which are referable to Order XXXIX, Rule 1 and the submission has no substance that an order deciding the application 6C finally is appeallable. Thus, preliminary objection of the Respondent cannot be accepted.

Now, coming to the second submission of the learned Counsel for the Appellant that the trial court has not recorded necessary findings before grant of interim injunction reliance has been placed on the Apex Court judgment in Kishorsinh Ratansinh Jadeja v. Maruti Corporation and Ors (supra). In the above case the Apex Court has considered the basic principles for grant of temporary injunction under Order XXXIX, Rule 1 and following was laid down in paragraph 36:

It is well-established, that while passing an interim order of injunction under Order XXXIX, Rules 1 and 2, C.P.C, the Court is required to consider three basic principles, namely: (i) prima facie case ; (ii) balance of convenience and inconvenience ; and (iii) irreparable loss and injury. None of the said principles have been considered by the High Court while passing the second and third interim orders dated 22.4.2008 and 7.5.2008.

A bare perusal of the order dated 29.4.2010 indicates that the Court has neither adverted to aforesaid three consideration nor recorded any finding with regard to three basic principles, i.e., prima facie case, balance of convenience and inconvenience and irreparable loss and injury.

In view of the above, we are satisfied that Appellant has made out a case for setting aside the order dated 29.4.2010 which order is hereby set aside. The learned Counsel for the Appellant undertakes for the same, that he shall appear before the court below and file objection to the application 6C on 19.5.2010. We further observe that the trial court shall proceed to pass a fresh order on the application 6C in accordance with law after considering the objection. We further observe that the trial court shall dispose of the application 6C expeditiously without granting any unnecessary adjournments to either of the parties.

The appeal is allowed accordingly.