Zahoor Ah. Shah vs Ascent Housing Developers and Another

Muzaffar Hussain Attar, J.

Mr. Javald Iqbal accepts notice on behalf of respondents. With the consent of the learned Counsel for the parties, this CIMA is taken up for final

disposal.

Heard. Learned Counsel for the parties.

The respondent/plaintiffs has instituted civil original suit against the appellant/defendant in the Court of Principal District Judge Budgam seeking

the following reliefs:

i) A decree of perpetual injunction be passed in favour of the plaintiffs and against the defendant, the defendant be restrained permanently from

raising the level of his land adjacent to the eastern side of the plaintiffs land and the houses constructed thereon higher than the level maintained by

the plaintiffs of their land situated at Sozeth Goripora Tehsil Beerwah cover under Survey Nos. 752/54,828/55, 811/59, 812/59, 50 min, 728/58

min, 803/60, 723/62, 59 to 62, 71 to 75 and 108 to 111 measuring approx. 100 kanals by any manner, mode or method.

ii) A decree of perpetual and mandatory injunction be passed in favour of the plaintiffs and against the defendant, the defendant be directed to

forebear hereafter from raising the level of his land above the level of the plaintiffs land by any other means or mode but to maintain the level of his

land at par with the level of the land maintained by the plaintiffs.

iii) Any other decree, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case be also

passed in favour of the plaintiff and against the defendant.

Alongside the suit respondents have also filed application seeking dispensation of issuance of notice as required under Order 39, Rule. 3 Code

of Civil Procedure.

The learned trial Judge vide order dated 18th October, 2008 allowed the prayer of the respondent/plaintiffs for dispensation of notice. Learned

trial Judge issued notice in the injunction application also and as an interim relief passed an ex parte ad interim injunction order whereby the

appellant defendant has been restrained from raising level of his land adjacent to the eastern side of the plaintiffs' land and the houses constructed

there on higher than the level maintained by the plaintiffs at Sozeth Gori Pora Tehsil Beerwah covered under survey Nos. 752/54, 828/55, 811/59,

812/59, 50 min, 728/58 min, 803/60, 723/62, 59 to 62, 71 to 75 and 108 to 111.

Issuance of statutory notice as provided under Order 39, Rule 3 CPC is mandate of law which is to be followed by the Courts while

considering the injunction application for grant or otherwise of the reliefs prayed for therein.

Before granting injunction Court is to direct issuance of notice to opposite party.

Order 39, Rule 3 CPC is reproduced as under:

The Court shall in all cases, except where it appears that the object is 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 grantirig the injunction has been made, a copy

of the application for injunction has 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 application 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.

The Court in terms of Order 39, Rule 3 Code of Civil Procedure, if satisfied that by issuance of said notice the object of granting the injunction

would be defeated may dispense with the issuance of notice under Order 39, Rule 3 Code of Civil Procedure. The Court if satisfied has to record

reasons for dispensing with issuance of notice under Order 39, Rule 3, Code of Civil Procedure. Unless the reasons are recorded, it would be

difficult to ascertain as to how and for which circumstances and on what grounds the dispensation of notice in terms of compliance with Order 39,

Rule 3, CPC has been ordered. The learned trial Judge has not recorded any reason for dispensing the issuance of notice excepting referring to

grounds urged in the application, without, noticing as to what the grounds urged are and without recording satisfaction about the same. This renders

the impugned order illegal.

The order impugned in this appeal is further rendered illegal for the reason that the learned trial Judge while issuing the ex parte ad interim

injunction order has not been for prima facie purposes recorded his satisfaction about existence of prima facie case, balance of convenience and

irreparable loss which are the cardinal principals for grant or refusal of injunctions.

Even for granting ad interim injunction, the Courts are required to record some reasons and also record prima facie satisfaction in respect of

existence of prima facie case, balance of convenience and irreparable loss. The impugned order does not satisfy the requirement of law.

The orders of injunction are orders of moment arid affect valuable rights of parties and cannot be issued at the mere asking of a parry.

The impugned order in view of the above discussion is rendered bad in law and is hereby set aside.

The learned Counsel for the appellant/defendant submits that he will file objections to the injunction application of the respondent plaintiff

during the course of this week. In case same is done, the learned trial Court is requested to consider and decide the application in the next week,

till then, as agreed, status quo be maintained by appellant/defendant.

Learned Counsel for the respondent/plaintiff agreed that the pending application(s) seeking implementation of the order shall defer

consideration by the trial Court.

Appeal accordingly disposed of.