Satya Prakash Gupta vs Civil Judge (Jr. Div.)

Ram Surat Ram (Maurya), J.—Heard

This petition has been filed against the order of Civil Judge dated 2.3.2016 by which he has granted ex parte interim injunction in the suit filed by Smt. Urmila Devi, respondent- 2/plaintiff.

Smt. Urmila Devi has filed a suit for permanent injunction restraining the petitioner from demolishing House No. 242/198 situated at Old Katra, Kutchehry Road, Allahabad. It has been alleged in the plaint as well as in the application for interim injunction that defendant is threatening to demolish the boundary wall of the construction as such preventive order is required.

The court below found that in case ex parte interim order is not passed then irreparable loss will be occurred to the plaintiff accordingly he directed the defendant to maintain status quo with regard to House No. 242/198 situated at Old Katra, Kutchehry Road, Allahabad.

The arguments of the counsel for the petitioner that Order 39, Rule 3 CPC provides mandatory provision for issuing of notice in the application under Order 39, Rule 1 and 2 CPC and hearing the defendant before passing any order. In this case without issuing any notice an ex parte interim injunction has been granted. Thus the order is against the provision of law and liable to be set aside.

I have considered the arguments of the counsel for the petitioner.

Order 39, Rule 3 . Before granting injunction, court to direct notice to opposite party.- The court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:

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, and require the applicant,-

(a) to deliver to the opposite party, or to send to him by registered post, immediately after the Order granting the injunction has been made, a copy of the application for injunction together with-

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents on which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or Sent.

Proviso of Order 39, Rule 3 CPC enables the court to grant interim order after recording reasons for granting the injunction.

In the present case the court below has specifically recorded a finding that in case interim injunction is not granted then irreparable loss will be occurred to the plaintiff. As the allegation was for demolishing the construction of the plaintiff thus the reasons have been recorded by the trial court for granting interim injunction.

There is no error in the impugned order. The petition is dismissed.