Meenavalli Balaram vs Nadlapatla Satya Pavani Vardhanamma

V. Bhaskara Rao, J.—This revision petition arises from an order in CMA.SR.No. 3086/1997 returning the C.M.A. as not maintainable since the impugned order was passed u/s 151 of the CPC and not covered by Order 43 Rule 1 Clause (r) of the Code of Civil Procedure.

The revision petitioner is defendant in O.S.No. 486/1996 and respondent in IA.No. 2450/1996 which is filed under Order XXXIX Rule 1 of the CPC for temporary injunction. The revision petitioner filed a counter therein and he is contesting the same. While that petition was pending, the respondent-plaintiff filed I.A.No. 3271 /1996 purportedly u/s 151 C.P.C. and sought for a similar remedy though styling it differently. The learned Principal District Munsif, Eluru, allowed that petition on the ground that no counter has been filed by the revision petitioner. Aggrieved by the above order, the revision petitioner filed C.M.A. before the Principal District, Judge, Eluru, who returned the same on the ground that C.M.A. is not maintainable. It is this order that is assailed in this revision petition.

The substance of the order in I.A.No. 3271/1996 is one of prohibitory in nature and it is an injunction against the revision petitioner from using the disputed pathway. It is strange that the main petition I.A.No. 2450/1996 was not disposed of and a petition filed subsequently purportedly u/s 151 C.P.C. for a similar relief has been disposed of. It is possible that the main petition IA.No. 2450/1996 has undergone some adjournments, but that does not mean that the petitioner therein is entitled to file another petition for a similar relief styling it as one u/s 151 C.P.C. It is to be emphasized that the foundation for a petition under Order XXXIX Rule 1 C.P.C., is the cause of action pleaded in the suit and hence there cannot be intermittent petitions under the guise of Section 1511 CPC on the same cause of action. It is needless to point out in this regard that Order II Rule 2 CPC is a bar. On the other hand if there is an independent cause of action for a petition of this nature, another suit is required to be filed on the basis of such independent cause of action and only then another petition for temporary injunction under Order XXXIX Rule 1 or of the nature on hand.

I shall now advert to the impugned endorsement returning the C.M.A. as not maintainable. The question is whether C.M.A. lies against the order in IA.No. 3271 of 1996, dated 24-1-1997.

Sri Challa Kodandaram, learned Counsel for the revision petitioner contended that any prohibitory order of the nature of injunction has to be treated as one under Order XXXIX Rule 1 or Rule 3 CPC though Section 151 CPC is also invoked in such petitions and that the Court passes such an order in exercise of powers under Order XXXIX Rule 1 or Rule 2 CPC and there being a specific provision in this regard, Section 151 CPC has no application. He relied on a Judgment of the Supreme Court reported in Firm Ishar Das Devichand and Another Vs. R. B. Prakash Chand and Another, for the above proposition. He further contended that since no counter is filed by the revision petitioner, the learned Principal District Munsif, Eluru, appears to have passed the order under appeal which is virtually an ex parte order and in that view of the matter also CMA lies against that order under Order XLIII Rule l(r) CPC as held by this Court in Andhra University v. P. V. N. Raju, 1974 (2) An.W.R. 17, Balaiah v. Aravindanagar Co-op. Housing Society, 1980 ALT 90 and E. Managamma Vs. A. Muniswamy Naidu,

As the impugned endorsement was passed by the learned Principal District Judge in CMASR. No. 3086/1997 even before it is numbered, the other side was not given notice in that Court and hence no notice is considered necessary in this CRP.

I considered the contentions of Sri Kodandaram in the light of the authorities cited by him. In the judgment cited supra (1), the Supreme Court considered the case where a preliminary objection was taken that no appeal lay against an order refusing temporary injunction on the ground that the order was passed u/s 151 CPC and not under Order XXXIX Rules 1 and 2 CPC. The learned District Judge upheld the preliminary objection and held that no appeal lay against that order on the ground that the order was passed u/s 151 CPC and not under Order XXXIX Rules 1 and 2 CPC and the High Court dismissed the revision in limini. The Supreme Court held -

"It is common ground that the appellants filed an application under Order XXXIX, Rules 1 and 2, and Section 151, C.P.C. The learned Sub-Judge had to consider whether this application was competent or not competent under Rule 2 of Order XXXIX. In deciding that no such application lay under Order XXXIX, Rule 2 on the ground that what the appellants were complaining of was not an injury within Order XXXIX, Rule 2 he was passing an order under Order XXXIX, Rule 2 itself. In appeal the appellants could contend that the learned Sub-Judge had misconstrued Order XXXIX, Rule 2, including the word "injury".

The preliminary objection of the respondent before the learned District Judge that the order dated July 20,1967, of the Sub-Judge was passed u/s 151, Civil Procedure Code, and not under Order XXXIX, Rules 1 and 2, Civil Procedure Code, is not sound because in holding that Order XXXIX, Rule 2 did not apply the learned Sub-Judge was not exercising his inherent powers. What the learned District Judge seems to have done is to hold that the application for temporary injunction did not fall, within Order XXXIX, Rule 2 and, therefore, no appeal lay. This reasoning is really on the merits of the case and not relevant to the preliminary objection raised by the respondent.

We must, therefore, hold that the District Judge and the High Court erred in holding that no appeal lay against the order of the Trial Court, dated July 20, 1967".

It is abundantly clear from the above Judgment that though Section 151 CPC is invoked by the respondent herein, it is in fact an order under Order XXXIX Rule 1 or 2, but not an order u/s 151 CPC.

It is evident from the affidavit of the revision petitioner filed in the unregistered IA in CMASR that IA.No. 3271/1996 was allowed on the ground that no counter was filed by the revision petitioner. Sri Kodandaram is, therefore, right in contending that it is an ex parte order. It is well settled that though an Advocate party is present in the Court and does not participate in the proceedings either for want of instructions or preparation, it is no presence and the Court is entitled to proceed ignoring his presence and such proceedings are termed as ex parte proceedings. Viewing from that angle, it can be said that the order is an ex parte order of injunction and undoubtely it is an appealable order.

In the judgment cited supra (2), it is held -

"On a plain reading of Rules 3 and 4 of Order 39 and Rule 1(r) of Order 43, it is evident, that a party aggrieved by a temporary injunction granted against him, can either file an appeal to the appellate Court, or move an application to the Court issuing the injunction, for setting aside or varying the terms of the injunction. When once the law provides him with two remedies, it is open to the aggrieved party to choose any one of them, and if he chooses to file an appeal against the order of temporary injunction granted against him, it is the duty of the appellate Court to dispose of that appeal, and the Court cannot dismiss the appeal merely on the ground that the aggrieved party did not choose the alternative remedy available to him of filing an application to the Court issuing the injunction, for setting aside the injunction or for varying the terms thereof".

In the Judgment cited supra (3), it is held-

"The power to issue an ex parte injunction is vested under Order 39, Rule 1 C.P.C. and the circumstances in which it could be granted ex parte are mentioned under Rule 3. Rule 3 does not deal with the power of the Court. Inasmuch as the power to make an ex parte injunction is traceable to only Order 39, Rule 1 C.P.C. an appeal lies under Order 43, Rule 1(r) C.P.C. Whether the ex parte order made under Order 39 Rule 1 C.P.C. satisfied the requirements of Order 39. Rule 3 C.P.C. as amended is a matter which affects the rights of a party who seeks a remedy by way of appeal. In an appeal against the order granting temporary injunction ex parte the Court would certainly go into the question whether it conforms to the requirements of Rule 3. But then that is a matter affecting the right of the party to prefer an appeal or the power of the Court to entertain the same but one affecting the merits of the order, on an examination of which the appellate Court may or may not sustain the order".

In the Judgment cited supra (4), it is held -

"It is clear that under Order 43, Rule 1(r), the right of appeal given to the affected party is not only against a final order of injunction passed by the lower Court after hearing both the parties under Rule 4 of Order 39 but also against an ex parte order of injunction passed by the lower Court under Order 39, Rule 1 without hearing the affected party. Normal judicial machinery for correction of ex parte orders is the original Court itself. But under Order 43, Rule 1(r) the injuncted party can go to an appellate Court against an ex parte order even without first going before the original Court. So long as the Statute has so willed the Courts should give effect to that expression of the legislative will, particularly in the case of remedy by way of an appeal."

In view of the ratio of the above authorities which have laid down the law on this subject with finality, I have no hesitation to hold that a C.M.A. lies against the order in IA.No. 3271/1996, dated 29-3-1997. The impugned endorsement is, therefore, liable to be set aside.

In the result, the revision petition is allowed and the impugned endorsement on CMASR of the learned Principal District Judge, Eluru is set aside and CMASR is returned to the Principal District Judge for being registered if otherwise in order for disposal according to law.

ORDER

Heard Sri Challa Kodanda Ram, the learned Counsel for the revision petitioner.

The matter is listed on the letter circulated by Sri Kodanda Ram for being mentioned and thus the matter is re-heard again. On a further elucidation of the matter, I am convinced that the order in I.A. No. 3271 of 1996 on the file of the Principal District Munsiff, Eluru dated 24-1-1997 is opposed to law for various reasons set out by me in my order dated 2-5-1997. In that view of the matter, the order stands suspended pending disposal of the CMA, which is now remitted to the learned District Judge for consideration and disposal according to law. While the CMA is in the seizin of the learned District Judge, the learned District Munsiff shall not feel diffident tot ake up LA. No. 2450 of 1996, which is the main injunction petition, and he is directed to take up that petition immediately and dispose of the same as expeditiously as possible.