Skip to content


Khusilal and ors. Vs. Gorelal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. NO. 988 of 1981
Judge
Reported inAIR1986MP47; 1985MPLJ123
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rules 1, 2 and 3 - Order 43, Rule 1
AppellantKhusilal and ors.
RespondentGorelal and anr.
Appellant AdvocateK.N. Gupta, Adv.
Respondent AdvocateN.P. Mittal, Adv.
DispositionRevision allowed
Cases ReferredCode. See Iqbal Singh v. Chanan Singh
Excerpt:
- - rule 3 reads :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. it is also required in the proviso of this rule 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......temporary injunction. therefore, the trial court chose to proceed under rule 3 of order 39 of the code. rule 3 reads :'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. it is also required in the proviso of this rule 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. 8. in this case the trial court has not felt any urgency as to fall to this proviso. it, therefore, follows that the trial court on 15-4-1981 did not.....
Judgment:
ORDER

Rampal Singh, J.

1. The applicants, aggrieved by the order of First Additional Judge to District Judge, Vidisha, dt. 20-11-1981, have preferred this revision petition under Section 115 of the C.P.C.

2. Non-applicant No, 1, Gorelal, filed a suit for declaration and permanent injunction against the applicants in respect of agricultural lands Nos. 112, 105, 115 and 124, situate in village Margavali in district Vidisha. Non-applicant No. 1 along with the suit, filed an application under Order 39 Rules 1 and 2 of the C.P.C., praying for issuance of temporary injunction against the defendant-applicants, for restraining them from interfering in the possession of the plaintiff.

3. The trial Court on 15-4-1981 passed the following order:the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further order:

izLrqr jktLo vfHkys[k [ksrkSuh izfrfyih lsik;k tkrk gS fd okn xzLr Hkwfe [kkrk ua- ' dh la;qDr [kkrs dh mHk;i{k dh HkwfegS izFke n`f'V esa oknh }kjk ,slk dksbZ izek.k izLrqr ugha fd;k x;k ftlls;g ik;k tkos fd i{kdkjksa ds e/; dksbZ foHkktu gqvk ,oe oknxzLr Hkwfe vihykFkhZdks ,sls foHkktu es feyh ,oe og Lora= :i ls dkfot gSA**

vr% bl fLFkfr ij fcuk foi{kh dks lqusa ,d i{kh;fu'ks/kkKk tjh fd;k tkuk U;k;ksfpr ugha gSA

foi{k dks uksfVl vk; , uEcj tjh gksA vk; ,uEcj ds fujkdj.k gsrq fnukad 2&'&' fu;rA

Thus according to the plaintiff the trial Court rejected the prayer of the plaintiff, to grant an ex parte temporary injunction.

4. Aggrieved by this order of the trial Court, the plaintiff preferred an appeal in the Court of District Judge, who in spite of the objection on the maintainability of appeal by the applicants, granted temporary injunction to the plaintiff. Applicants thus challenge the impugned order on the ground that the District Judge has exercised the powers not vested in him under Section 43 Rule 1 of the Code.

5. It would be pertinent to quote the relevant provision contained in Order 43 Rule 1(r) of the Code.

'1. Appeals from order.-- An appeal shall the, from the following orders under the provisions of Section 104, namely--

(a) ...........

(r) an order under Rule 1, Rule 2, Rule 4 or Rule 10 of Order XXXIX;

Thus, an appeal shall lie from the order of the trial Court to the Court to District Judge, if the order is purported to be passed under Order 39 Rules 1 and 2 of the Code. Let us, therefore, examine whether the order passed by the trial Court falls under the spell of Rules 1 and 2 of Order 39 of the Code.

6. It is settled that an order on injunction whether interim or final, is appealable under Order 43, Rule 1 of the Code. Even if the Court passing an order of injunction takes the crutch of Section 151 of the Code, the order is appealble. But if the trial Court passes an order either refusing or granting temporary injunction, then in such a situation, the appeal shall not lie under Order 43 Rule 1 of the Code. In an application under Order 39, Rules 1 and 2 of the Code, the Court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or unitl further orders.

7. What the trial Court did in this case is that it neither passed an ex parte injunction in favour of the plaintiff nor refused to grant it. The trial Court could not decide from the material supplied by the plaintiff as to whether the parties are in joint possession of the suit land or otherwise. The trial Court, therefore, felt that without notice to the defendants it would not be just and proper to grant an ex parte temporary injunction. Therefore, the trial Court chose to proceed under Rule 3 of Order 39 of the Code. Rule 3 reads :

'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.

It is also required in the proviso of this rule 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.

8. In this case the trial Court has not felt any urgency as to fall to this proviso. It, therefore, follows that the trial Court on 15-4-1981 did not pass any order under Order 39 Rules 1 and 2 of the Code, but only passed an order under Rule 3 of that Order. The order passed under Rule 3 of Order 39 of the Code is not appealable. Therefore, the District Judge had no jurisdiction to entertain an appeal against the order of the trial Court, which was not appealable under Order 43 Rule 1(r) of the Code. See Iqbal Singh v. Chanan Singh AIR 1966 Punj 165.

9. As the District Judge had no jurisdiction to pass the impugned order, it does not deserve to be maintained. The injunction order passed by the District Judge in favour of the plaintiff on 20-11-1981 is therefore, quashed. It is directed that the trial Court after hearing both the parties shall pass proper order on the application of the plaintiff filed under Order 39 Rules 1 and 2 of the Code. There shall be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //