Samarjeet Patel vs Additional District Judge/Special Judge and Others

R.K. Mahajan, J.—This is a writ petition under Article 226 of the Constitution of India praying for quashing of judgment and order dated 29.1.1997 passed by Additional District Judge/Special Judge, Allahabad in Misc. Appeal No. 327 of 1996 Vilkish Begum and Ors. v. Samarjeet Patel.

This writ petition has arisen from the following facts. Admittedly the ease of the Plaintiff-Petitioner is that he is the owner of the land as described in Para No. 2 of the writ petition and he sold l/5th of land on 18.6.1980 for a consideration of Rs. 6,500 to Defendant No. 3 and the possession was also delivered to him. The Petitioner''s case is that he never executed any sale deed in the year, 1985 in favour of Respondent Nos. 1 and 2 at all. It is case of forgery and action of some imposter. It is also admitted case that the Plaintiff has given remaining land on lease, as mentioned in Para No. 4 of the writ petition, when the Respondent No. 1 approached the Plaintiff as he wanted to start brick kiln for Rs. 200 per month. The Petitioner was receiving lease money but off late no money has been paid and the brick kiln was also not in operation. It is also alleged in the petition that the Petitioner has taken some advance for selling land to the Defendant-Respondent No. 3 by unregistered agreement. The simple prayer of the Petitioner is that a notice of caveat was received on 18.6.1996 by him before the filing of the suit. He made an enquiry and he came to know after obtaining certified copy from the Sub-Registrar Office that the sale deed has been executed either by forgery or by imposter. He filed an application under Order XXXIX, Rules 1 and 2 that the Respondents be restrained not to challenge the nature of the land and also for running brick kiln. The lower court granted injunction on 12.12.1996. The same is quoted with advantage:

Heard the Plaintiffs counsel and perused the record.

According to the Plaintiff the Defendants were lessee of the disputed land which belongs to the Plaintiff that the disputed land has fraudulently been sold in favour of Smt. Vilkish Begum the Defendant No. 1 by some person in place of the Plaintiff. The Plaintiff never executed the alleged sale deed. Now on the basis of forged sale deed the Defendant Nos. 1 and 2 want to change the nature of the suit by running ''Bhatta'' over it. The Plaintiff has filed the extract of khatauni and sale deed.

From the facts of the case it is just and fit that the nature of the land should not be changed otherwise it would lead to multiplicity and complicity.

Issue notice to the opposite parties fixing 1.1.1997 for objection and disposal. In the meantime, the parties shall maintain status quo on the spot and not change the nature of the property in suit. The Plaintiff is directed to comply with the provisions of Order XXXIX, Rule 3. CPC forthwith

learned Counsel for the Petitioner submits that the Additional District Judge has heard the appeal without calling record and when there was no dispute of possession the Commissioner should not have been appointed. He further submits that the simple prayer of the Petitioner was that the nature of the land should not be changed. He has further submitted that inspite of filing the appeal, the Respondent should have showed cause in the lower court and after getting proper order on merits, appeal should have been filed. According to learned Counsel for the Petitioner, the appeal in the tacts and circumstances of the case is not maintainable.

Shri M, A. Qadir, learned Counsel for the Respondents submit that under Order XLIII (R) the appeal is maintainable even against an ex parte injunction. There is no doubt that the appeal is maintainable under Order XLIII (R), CPC The appeal is also right under statute. The question in this case which arises for consideration is that in every case if an ad interim order is granted and show cause be issued, then the appellate court need to be cautious and circurnspectus in admitting the appeal though there is no absolute prohibition in exceptional cases. The intention of the Legislature was not to bypass the remedy under Order XXXIX, Rule 4, CPC and I would like to quote Order XXXIX, Rules 3 and 4, CPC in extenso:

3A. Court to dispose of application for injunction within thirty days--Where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record lis reasons for such inability.

Order for injunction may be discharged, varied or set aside.--Any order for an injunction may be discharged, or varied or set aside by the Court, on application made thereto by any party dissatisfied with such order:

Provided that if in an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interest of justice:

Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances or unless the Court is satisfied that the order has caused undue hardship to that party.

The Legislature in its wisdom thought that in case of emergent cases if a court is satisfied, ex parte injunction is to be granted, notice has to be issued completing all the formalities, as required, then the Legislature also expressed the intention, that the injunction application so far as possible is to be disposed of within thirty days. Even otherwise it is to be disposed of expeditiously. If it has been granted without giving notice to the opposite party, there is remedy under Order XXXIX, Rule 4, CPC for discharge, setting aside, variation of injunction order. It is now settled principle of law that where the particular procedure has been prescribed stated that has to be followed unless mala fides or other exceptional circumstances are pleaded. Each case has to be adjudged on its facts and circumstances.

Sri Qadir has brought to my notice Full Bench of Allahabad High Court in Zila Parishad, Budaun and Others Vs. Brahma Rishi Sharma, , in which the court has held as under:

An ex parte order issuing temporary injunction under Order XXXIX, Rules 1 and 2 against the Defendants is appealable under Order XLIII, Rule 1(r), CPC It has been held that the language of Rule 1 (r) is uphedged and broad and the Courts should lean in favour of an interpretation which expands rather than shrinks a remedial right. It has been further held that remedial provision is generally construed liberally and Rule 1 (r) creates a remedial right of appeal for protection of substantial and substantive rights.

Apart from legal position, there is another reason also for holding that appeal is maintainable. It is this that instances are not unknown where on account of tactics adopted by one party the application to vacate ex parte injunction order is not allowed to be heard for a long time. The ex parte order may be causing serious injury to the other side and if in such a situation the aggrieved party is deprived of his right of appeal, it may have very serious consequences.

There is also ruling of Jammu and Kashmir High Court- Astral Traders Vs. Haji Mohammad Shaban Dar and Others, . Another reported in Patel Jasmat Sanguji v. G.E.B. Board AIR 1982 Guj 264. M/s. Barijatha v. Kanalksha Nayak AIR 1982 Kar 105. In the first case, it was held that the appeal is maintainable against an ex parte order of injunction but it will be more appropriate for moving the application for vacating the order. In the second case, it has been held that the appeal is maintainable but the appellate court will exercise the power cautiously. In the third case, it was held that no appeal is maintainable against the ex parte order.

So far Allahabad Full Bench is concerned, it does not lay down at all that parties should not approach under Order XXXIX, Rule 4, nor it prohibits. The question was decided regarding maintainability of the appeal. This appeal was decided in 1970 by the Full Bench and Order XXXIX, Rule 3 proviso and 4 were introduced by Act No. 140 of 1976. So it can be distinguished on the aspect of propriety of approaching under Order XXXIX, Rules 3 and 4, CPC for vacating the impugned orders.

In my considered view, in the facts and circumstances of the case, the appeal is maintainable but the learned District Judge should have refrained Itself from deciding the case as the injunction could have been varied or discharged for set aside by the lower court itself. There is also question of losing a right of appeal after decision on merits. I, therefore, set aside the order of the appellate court and remand the case to the lower court. The lower court is directed to decide the case within fifteen days of the receipt of the record. The parties to appear on.

The writ petition is allowed in the light of the above observations.