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Smt. Raj Kumari Suri Vs. Prem Lal Dhiman - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 13 of 1971
Judge
Reported inAIR1972HP67
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rules 1, 2 and 4 - Order 43, Rule 1
AppellantSmt. Raj Kumari Suri
RespondentPrem Lal Dhiman
Appellant Advocate P.K. Duggal and; B.B. Vaid, Advs.
Respondent Advocate R.K. Gupta, Adv.
DispositionRevision dismissed
Cases ReferredShankar Singh v. Firm Sudarshan and Co. In
Excerpt:
- .....was continued for unnecessary period of time. accordingly the defendant came in appeal before the learned district judge who heard the parties and by his order dated 12-1-1971 modified the injunction already granted by the learned senior sub-judge. he maintained the injunction for not using the main passage beyond the point marked 'ab' leading to the main building. he further maintained the injunction by saying that the windows, doors and ventilators which shall be opened by the defendant would not touch the main passage, nor would be utilised by the defendant for any path upto the main passage beyond the point marked 'ab'. however, he modified the injunction to this extent that subject to these restrictions, the windows, doors and ventilators can be opened by the defendant in his wall.....
Judgment:
ORDER

D.B. Lal, J.

1. This as an application in revision under Section 115 of the Civil Procedure Code and has been directed against an order D/- 12-1-1971 of the District Judge, Simla whereby he has modified a certain order of injunction issued at interim stage by the Senior Sub-Judge of Simla. The facts leading to the petition are as follows.

2. The plaintiff Shrimati Raj Kumari Suri appeared in Court with the allegations that the defendant Shri Prem Lal Dhiman is constructing a house over a plot of land sold to him by her, but he is also utilising the main passage beyond the point 'AB' leading to her own building and the court premises, shown in her site plan and that the defendant should be prohibited from using this main passage. It was further contended, that the defendant is constructing a wall towards the main passage beyond the point 'AB' and he has opened doors, windows and ventilators in this wall to which he is not entitled. Accordingly the suit was filed for prohibitory injunction of a permanent nature restraining the defendant from utilising the main passage and from opening the doors, windows and ventilators.

3. Upon the application of the plaintiff on 3-11-1970, the learned Senior Sub-Judge made the following order:--

'Issue notice to the respondents for 28-11-1970. Ad-interim injunctions, as prayed for, till further orders.

Senior Sub-Judge

3-11-70

The defendant filed his objections under Order 39, Rule 4 of the Civil Procedure Code which have remained un-disposed of. It was contended on behalf of the defendant that several adjournments were granted by the learned Senior Sub-Judge, with the result that the injunction ad-interim was continued for unnecessary period of time. Accordingly the defendant came in appeal before the learned District Judge who heard the parties and by his order dated 12-1-1971 modified the injunction already granted by the learned Senior Sub-Judge. He maintained the injunction for not using the main passage beyond the point marked 'AB' leading to the main building. He further maintained the injunction by saying that the windows, doors and ventilators which shall be opened by the defendant would not touch the main passage, nor would be utilised by the defendant for any path upto the main passage beyond the point marked 'AB'. However, he modified the injunction to this extent that subject to these restrictions, the windows, doors and ventilators can be opened by the defendant in his wall towards this side. The plaintiff has the grievance to this modification and she has now come up in revision before this Court and wants reconsideration of the whole issue.

4. It was contended by the learned counsel that the appeal under Order 43. Rule 1 (r) of the Civil Procedure Code was not entertainable before the District Judge. The basis for the argument has been, that the learned Senior Sub-Judge had passed only an interim order which could be modified or even set aside subsequently. It is stated that an appeal against a final order could be filed under Order 43, Rule 1 (r) of the Civil Procedure Code. I can at once say that this argument of the learned counsel does not seem to carry any weight. The language and the object of the Rule 1 (r) of Order 43 and the scheme of Rules 1 to 4 of Order 39 show that an appeal also lies against the ex parte order of injunction. As soon as in interim injunction is issued and the party affected thereby is apprised of it, he has two remedies.

(1) he can either get the ex parte injunction order discharged, varied or set aside under Rule 4 of Order 39, and if unsuccessful, avail the right of appeal as provided for under Order 43, Rule 1 (r) or,

(2) straightway file an appeal under Order 43, Rule 1 (r) against the injunction order passed under Rules 1 and 2 of Order 39 of the Civil Procedure Code,

It is not unusual to provide for alternative remedies. To support this proposition, reliance can be placed on AIR 1970 All 370 (FB), Zila Parishad Budaun v. Brahama Rishi Sharma. The learned counsel referred to AIR 1958 Assam 171, Ram Chandra Dey v. Jhumar-mal Jain and pointed out that in a case of appointment of receiver under Order 40, Rule 1 of the Civil Procedure Code which was an interlocutory order, an appeal was not permitted to the higher Court. The facts of that case are distinguishable, inasmuch as, the Court did not make the appointment of receiver but only expressed an opinion that a receiver should be appointed and against that interlocutory order the appeal was filed. It was held that the person appealing should have waited for the final appointment which was yet to be made by the Court. In the instant case, the interim injunction was already granted by the learned Senior Sub-Judge and nothing more remained to be done, except hearing the objections of the defendant, if any, against the grant of such injunction.

The learned counsel further referred to (1967) 3 Delhi LT 1 = (AIR 1967 SC 799); Central Bank of India Ltd. v. Gokal Chand. In that case again an appeal was filed against interlocutory order of a procedural nature such as the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question. I am in respectful agreement with the learned Judges who held in that case that although Section 38 (1) of the Delhi Rent Control Act, 1958 prescribed for an appeal against 'every order of the Controller made under the Act', yet no appeal was entertainable.

In the instant case no such procedural order has been passed; rather a complete order of granting injunction was passed and that order was to be followed until it was set aside as a result to any objection raised by the defendant. Therefore, this case is also not applicable to the facts and circumstances of the case in hand. The learned counsel then, lastly, relied upon (1968) 70 Pun LR 354, Shankar Singh v. Firm Sudarshan and Co. In this case, it was held that no appeal lay against the order of trial Judge refusing to grant a temporary injunction. However, it was found that the injunction order was not refused under Order 39, Rules 1 and 2 of the Civil Procedure Code but was refused under Section 151 of that Code and hence the appeal was found not entertainable under Order 43, Rule 1 of that Code. The present case is again on a different footing. Here the injunction was granted under Order 39, Rules 1 or 2 of the Civil Procedure Code and the appeal was entertainable.

5. In this view of the matter, the contention of the learned counsel that the learned District Judge had no jurisdiction to entertain the appeal does not hold good. It is to be precisely understood that this Court would be able to interfere in revision only if the petitioner succeeds in showing that the subordinate Court exercised the jurisdiction not vested in it by law, or failed to exercise a jurisdiction so vested, or acted in the exercise of its jurisdiction illegally or with material irregularity. After hearing all that could be stated on the subject by the learned counsel, I cannot help concluding that in this case the conditions for interference in revision are not fulfilled. Regarding jurisdiction, I have already stated above that the learned District Judge had the jurisdiction to entertain the appeal and make the modification in the injunction order. Much less to say, the relief of injunction is always granted to protect the plaintiff from any injury which he is likely to suffer before the suit is decided. The oft repeated conditions for granting injunction : prima facie case in favour of the plaintiff, balance of convenience in favour of granting the injunction, and irreparable loss which he is likely to suffer if the injunction is not granted. In his grounds of appeal, the defendant urged before the learned District Judge that the plaintiff does not possess any house in close vicinity to the wall in which these apertures are to be opened.

In his objections dated 1-3-1971 against the interim stay granted by this Court after the revision was filed, the defendant further contended that the construction work was almost complete and that only roofing has remained to be given to such construction, meaning thereby that doors, windows and ventilators have already been opened in the disputed wall. It is also stated that no right of privacy exists which could be infringed against the plaintiff. The learned District Judge has already specified that in the sale-deed, prima facie, there is no prohibition for the opening of these apertures in the wall. With these circumstances which are available, it is quite reasonable to hold that the defendant had a prima facie case in his favour and that the balance of convenience also enjoined that the doors, windows and ventilators are permitted to be opened inside the wall so long as these are not utilised for a path to the main passage for any out let towards it. That has already been injected by the learned District Judge. There is no question of the defendant suffering an irreparable loss because these apertures would be opened subject to the decision in the suit.

6. It was stated that the learned District Judge did not give any reasoning for giving his decision. He had given a hearing to the parties and it is expected that all the relevant points must have been placed before him. The observation of the learned District Judge that the sale-deed did not contain an embargo for the opening of the apertures, indicates that he did consider merits of the case. It is difficult to say that the grant of injunction to the extent of certain particulars should have necessarily influenced the Court to have granted it in totality. Therefore, whatever part of injunction the learned District Judge modified, he did so on justifiable grounds.

7. In this view of the matter, I do not find any reasons whatsoever to interfere with the order of the learned District Judge. The petition has no force and is dismissed. However, no order is made as to costs.


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