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Munnu Lal Vs. Nagar Mahapalika and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 809 of 1977
Judge
Reported inAIR1978All11
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rule 4; Uttar Pradesh Civil Laws (Reforms and Amendment) Act, 1976; Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantMunnu Lal
RespondentNagar Mahapalika and ors.
Advocates:Gyan Prakash and ;Anand Mohan Lal, Advs.
DispositionRevision dismissed
Excerpt:
.....added by u.p. civil laws (reforms and amendment) act, 1976] - proviso empowers court to vacate injunction on application made by any party dissatisfied by order - validity of proviso challenged as it added new ground to rule 4 - every court has inherent power to vacate injunction on being satisfied that injunction is obtained by abuse of the process of court - u.p. act has only codified inherent power of court - proviso is not invalid. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run..........is unsound and cannot be sustained. order 39, rule 4, c. p. c. as it stands after amendment of the code by the central amendment act runs as follows :--'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 interests of justice. provided further that where an order for injunction has.....
Judgment:
ORDER

Yashoda Nandan, J.

1. This is a plaintiff's application in revision and is directed against an order passed by the learned District Judge, Allahabad confirming an order passed by the learned Munsif West vacating an ex parte order of injunction. The ex parte order of injunction was vacated on the ground that the plaintiff applicant was adopting dilatory tactics.

2. Learned counsel for the applicant urged that the learned Munsif whose order wag confirmed by the Appellate Court vacated the ex parte order of injunction in purported exercise of powers under Order 39, Rule 4 as amended by the Uttar Pradesh Civil Laws (Reforms and Amendment) Act, 1976 hereinafter referred to as the State Amendment Act. It was urged that Section 13 of the State Amendment Act which introduced a third proviso to Order 39, Rule 4, C. P. C. as it stands amended by the Code of Civil Procedure (Amendment) Act, 1976 is not consistent with the Central Amendment and is consequently invalid on account of Section 97 of the State Amendment Act. The contention in my opinion is unsound and cannot be sustained. Order 39, Rule 4, C. P. C. as it stands after amendment of the Code by the Central Amendment Act runs as follows :--

'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 interests 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.'

3. The two proviso quoted above, it may be mentioned here, have been introduced in Order 39, Rule 4 of the Code of Civil Procedure by Act 104 of 1976 which came into force on the 10th September 1976. Learned counsel conceded that the two proviso added to the Civil Procedure Code by Act No. 104 of 1978 did not apply to the instant case because the ex parte order of the injunction had been granted before the coming into force of the Central Amendment Act. The proviso added to Order 39, Rule 4 by the State Amendment which came into force with effect from 1st January 1977 is in the following terms :--

'Provided that if at any stage of the suit it appears to the Court that the party in whose favour the order of injunction exists is dilating the proceeding or is otherwise abusing the process of the Court it shall set aside the order of injunction.'

4. It was urged that under the Central Act the Court had power to vacate an ex parte order of injunction only on merits. As a result of the proviso introduced by the State Amendment this power has been widened and is now open to a Court granting an order of injunction to vacate the order even on the ground that the plaintiff is dilating the proceedings or is otherwise abusing the process of the Court. He invited my attention to Sub-section (1) of Section 97 of Act 104 of 1976 which is in the following terms :--

'Any amendment made or any provision inserted in the Principal Act by a State Legislature or a High Court, before the commencement of this Act shall, except in go far as such amendment or provision is consistent with the prevision of the Principal Act as amendment by this Act, stand repealed,'

5. It wag submitted that the legislation is not consistent with the Central Amendment because it adds new grounds to the Code existing in the Central Act for vacating an ex parte order of injunction. The contention is in my opinion wholly unsound and overlooks the basic character of an order of injunction permanent or otherwise. A relief of injunction is a discretionary one and there is an inherent power in every Court to vacate the order of injunction if it is of the opinion that there has been an abuse of the process of the Court. The State legislation has done nothing beyond codifying a power inherent in Courts exercising a discretionary jurisdiction while considering the question of grant of an injunction order.

6. In the circumstances as stated already the revision is without any merit and is accordingly dismissed.


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