Gopal Prasad Singh and Another vs Satyavati Kumari and Others

S.K. Katriar, J.—Stamp reporter has objected to the maintainability of this civil revision application and noted that an appeal is instead maintainable. In view of the nature of the order I am going to pass, there is no need to decide the same. Further more, a Misc. First Appeal and Civil revision are both to be heard by single Judges of this Court.

The Plaintiffs are the Petitioners. This civil revision application is directed against the order dated 8.10.2001, passed by the learned Subordinate Judge 1st Court Rosera, in partition suit No. 53 of 2001 Gopal Prasad Singh v. Most. Satyawati Kumari and Ors. The Plaintiffs filed an application under Order 39, Rules 1 and 2 Code of Civil Procedure, praying therein that the Defendants may be injuncted from alienating the suit property during the pendency of the suit. The Defendants are purposely avoiding to receive notices and are also alienating portions of the property gradually. Therefore, the Plaintiffs filed an application under Order 39, Rule 3 (proviso) for interim injunction without notice to the Defendants which has not been entertained, and the trial Court has instead passed the impugned order directing the Plaintiffs to take steps for service of notices on the Defendants. Learned Counsel for the Plaintiffs (Petitioners) submits before me that this was a fit case in which interim orders ought to have been passed in terms of proviso to Rule 3 of Order 39, otherwise the present attitude of the Defendants may render the entire suit infructuous.

Having considered the submissions and perused the impugned order, I am of the view that the trial Court ought to have applied his judicial mind to the prayer of the Petitioners in terms of proviso to Rule 3 of Order 39 CPC which is set out hereinbelow for the facility of quick reference:

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....

It appears to me from the order-sheet that the Defendants are avoiding to receive the notices and are alienating the suit property. In that view of the matter, the trial Court is hereby directed to consider the Petitioners'' application for interim injunction without services of notice on the Defendants in accordance with law.

This civil revision application is accordingly disposed of.