Gajendra Giri vs Munnalal Soni Alias Kailash Chandra and Others

Sheel Nagu, J.—This petition under Article 227 of the Constitution of India assails the interlocutory order dated 08.04.2013 passed by First Additional District Judge, Guna in Civil Suit 5-A/2011, whereby the application under Order 39 Rules 1 and 2 of the CPC has not been decided and the decision on the same has been postponed sine die in view of this Court having stayed the proceedings of the suit in question by an interlocutory order passed on 04.08.2011 in W.P. No. 5124/2011. Learned counsel for the petitioner is heard on the question of admission.

The sole contention of the learned counsel for the petitioner is that the decisions of this Court in the cases Jagdamba Oil Agency Vs. K.S. Oils Ltd. and Others, and Shri Mahila Grih Udyog Lijjat Papad Vs. Smt. Usha Sontake, holding that stay of proceedings in a Civil Suit does not preclude the trial Court from dealing with the interlocutory applications/supplemental proceedings, have not been considered by the trial Court or else the impugned order would not have been passed.

On perusal of the above said decisions of this Court cited by the learned counsel for petitioner, this Court is of the view that a request for grant of temporary injunction is very much included in the term of "supplemental proceedings". The Supreme Court in the case of Amita Kaushish and Others Vs. Sanjay Kaushish and Others, has observed that stay of trial of the suit does not preclude the parties from seeking such appropriate interlocutory reliefs as may be available and warranted in the fact and circumstances.

Proceedings for considering and deciding prayer for temporary injunction under Order 39 Rules 1 and 2, CPC are undoubtedly supplemental in nature, conduction of which does not require simultaneous conduction of suit proceedings as a sine qua non. Such supplemental proceedings can go on even if the suit is held in abeyance, proved the suit is alive.

However, since the above said legal position has not been taken into account by the trial Court, this Court has no hesitation to hold that the Court below has failed to exercise jurisdiction vested in it under Order 39 Rules 1 and 2 CPC.

Consequently, this petition under Article 227 of the Constitution of India is allowed in the following terms:

(1) The interlocutory impugned order dated 08.04.2013 passed by First Additional District Judge, Guna in Civil Suit 5-A/2011 is set aside;

(2) The trial Court is directed to consider the application under Order 39 Rules 1 and 2 of the CPC filed by the petitioner and take a decision on the same on merits in accordance with law as expeditiously as possible; and

(3) No order as to costs.