HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 18 Case :- MISC. SINGLE No. - 7585 of 2010 Petitioner :- Nizamuddin Khan @ Shabbu And Another [ U/A 227 ] Respondent :- Additional District Judge Lucknow And Ors. Petitioner Counsel :- M.A.Khan Respondent Counsel :- Manish Kumar Hon'ble Anil Kumar,J.
Heard Sri Mohd. Arif Khan, learned Senior Counsel assisted by Sri Mohd. Aslam Khan, learned counsel for petitioner, Sri Nripendra Misrha, Advocate holding brief of Sri Manish Kumar, learned counsel for respondent Nos. 1 and 2 and Sri Surendra Pratap Singh, learned counsel appearing on behalf of respondent Nos. 3 and 4.
Facts in brief as submitted by Sri Mohd. Arif Khan, Senior Advocate are that respondent Nos. 3 and 4/plaintiffs filed a suit for permanent injunction registered as Regular Suit No. 50 of 2010,(Sri Shashi Kant Bajpayee and another Vs. Sri Nizamuddin and another) in the Court of Civil Judge North (J.D.), Lucknow. In the said suit, an application for grant of temporary injunction has been moved on behalf of plaintiffs/respondents and on 23.04.2010, a temporary injunction was granted in favour of plaintiffs/respondents. Subsequently, modified vide order dated 26.04.2010 (Annexure No. 4) by the trial court.
On 02.05.2010, petitioners/defendants moved an application under Order 39 rule 4 read with Section 151 CPC for vacation of the ex-parte injunction order granted in favour of plaintiffs/respondents(Annexure No. 5).
Thereafter, an application for amendment of the plaint was moved by the plaintiff under Order VI Rule 17 CPC, rejected by order dated 18.05.2010 (Annexure No. 6). Aggrieved by the same, plaintiffs/respondents filed Civil Revision No. 73 of 2010, (Shashi Kant Bajpai and another Vs. Nizamuuddin and another), in whivh District Judge, Lucknow passed an order dated 26.05.2010 (Annexure No. 12), however, the same was dismissed by order dated 29.01.2011.
In the intervening period plaintiffs/respondents approached this Court by filing writ petition No. 3533 of 2010, Shashi Kant Bajpai and another Vs. District Judge, Lucknow and others, allowed partly by order dated 08.06.2010, the operative portion of the same reads as under:-
"It is also clarified that apart from the disputed land with regard to which the injunction order of status quo was granted the opposite parties no.5 and 6 will be at liberty to carry on their finishing work, if at all is needed and the authorities will not create any hindrance in the aforesaid action of the opposite parties no.5 and 6.
Writ petition is party allowed to that extent. "
As per the submission made by the learned counsel for petitioner in the said matter this Court has given a finding, the same is as under:-
"The submission is that either the injunction vacation application of the opposite parties no.5 and 6 should be disposed of first and thereafter the amendment application was ordered on 17.5.2010. Against this order an application for recalling the said order was preferred but the said application was rejected by means of order dated 18.5.2010. The order dated 18.5.2010 has been subjected to challenge in revision before the revisional court. During the pendency of the revision, an application was given by the opposite parties no.5 and 6 for remitting the record to the trial court and in the meantime the case was transferred to the court of Additional District Judge-II, Lucknow and it is stated that no notice was given to the petitioners either prior to the transfer or after the transfer and the revisional court proceeded to pass the order on application of the opposite parties no.5 and 6 remitting the record back to the trial court with a view to get the injunction vacation application decided."
In addition to the abovesaid facts, plaintiffs/respondents also approached this Court by filling writ petition No. 5821 (MB) of 2010 (Sri Shashi Kant Bajpayee and another Vs. State of U.P. and others), disposed of by order dated 17.06.2010, operative portion of the same is as under:-
"Accordingly, there is no ground to interfere in writ jurisdiction under Article 226. However, it is provided that in case any application is moved under Section 151 C.P.C. within one week from today, that shall be adjudicated by the trial court. In the absence of trial court, concerned Magistrate shall look into the matter as urgent during the course of vacation, nominated by the District Judge. "
In view of the abovesaid facts, Sri Mohd. Arif Khan, Senior Advocate in brief has made a submission on behalf of petitioners/defendants that the application dated 02.05.2010 for vacation of the ex-parte interim order, initially granted on 23.04.2010 subsequently modified on 26.04.2010, by the trial court is still pending, not adjudicated on merit, till date without any reasonable justification or reason, rather the same is lingering on one or other pretext with dilatory tactic adopted by the plaintiffs/respondent Nos. 3 and 4 with oblique motive and purpose. Accordingly, he submits that a direction may be issued to the trial court to decide the said application expeditiously.
Sri S.P. Singh, learned counsel appearing on behalf of respondents submits that initially when a suit for permanent injunction has been filed by the plaintiffs/respondents, on 01.04.2010 the trial court/Civil Judge North (J.D.), Lucknow has issued a notice to the defendants. Aggrieved by the said facts, plaintiffs approached this Court by filling Writ Petition No. 1938 (MS) of 2010, on 07.04.2010 a direction was issued by this Court, thereby directing the trial court to pass an appropriate order on the application for temporary injunction either on the next date fixed or on another date which shall be fixed within next one month. In view of the abvoesaid facts, the trial court after hearing the plaintiffs/respondents granted temporary injunction on 23.04.2010 subsequently modified on 26.04.2010.
Accordingly it is submitted by Sri S.P. Singh, learned counsel for respondents that once a notice has been issued by the trial court to the petitioners/defendants, thereafter in view of the order passed by this Court, temporary injunction granted in favour of the plaintiffs/respondents on 23.04.2010 modified on 26.04.2010, the same is not an ex-parte order, thus the application filed by the petitioners/defendants under Order 39 Rule 4 read with Section 151 CPC is not maintainable, hence present writ petition, liable to be rejected.
After hearing learned counsel for the parties and going through the material on record, the core question which is to be considered and decided in the present case is whether any opportunity of hearing is given to the petitioners/defendants to put forward their defence for vacation of the injunction order granted in favour of the plaintiffs/respondents on 23.04.2011/26.04.2011 or not and by merely issuing notice to the defendant prior to the granting temporary injunction by the trial court and thereafter granting the same to the plaintiffs when defendants have not put appearance and filed their objection in that circumstances the application moved by the petitioners for vacation of injunction order is maintainable under the provisions of order 39 Rule 4 CPC or not.
In order to decide the controversy which is involved in the present case, it is necessary to have a glance to the provisions as provided under Order 39 Rule 4, from the perusal of the same, it is crystal clear that if a temporary injuction is granted under Order 39 Rule 1 and 2 CPC. After hearing counsel for parties concerned, the same cannot said to be an ex-parte and cannot be discharged, varied or set aside.
In the instant case, on an application moved by plaintiffs/respondents for grant of temporary injunction, initially the trial court has issued notice. Aggrieved by the said fact they approached this Court by filing Writ Petition No. 5821 (MB) of 2010 ( Sri Shashi Kant Bajpayee and another Vs. State of U.P. and others) disposed of vide order dated 17.06.2010 and in terms of the same, the trial court has considered the application for grant for temporary injunction granted on 23.04.2011, thereafter modified on 26.04.2010.
In view of the said facts, although the notices were issued by the trial court on an application for grant of injunction but thereafter neither petitioners/defendants had put their appearance in the matter in question before the trial court nor they filed objection to the application for grant of injunction order, the same has been granted ex-parte. Hence, I am of the considered opinion that there is no legal impediment or embargo on the part of petitioners/defendants to move an application under Order 39 Rule 4 CPC for vacation of the ex-parte injunction order, as the said provision clearly lays down that if an injunction order is passed, after hearing counsel for the parties, the same cannot be discharged, varied, modified or set aside.
In the case of Purna Chandra Das v. Smt. Bishnu Priya Mahapatra, AIR 1985 NOC 59(Orissa) ad interim order of injunction was made absolute on the failure of the defendant to appear on date fixed for showing cause, application for recalling was filed. It has been held that application was maintainable.
In the case of Abdul Shakoor Sahib v. Umachander, AIR 1976 Mad 350 the question was where an ex parte interim injunction is granted by court, then appeal is the only remedy or an application under Order 39, Rule 4 will lie. It was held that "no appeal will lie against an ex parte ad interim injunction, but the specific remedy available in Order 39, Rule 4, CPC has to be availed of by the party who is affected by the injunction, so that a final reasoned order could be obtained in the trial Court itself against which the Code has provided an obvious appeal under Order 43, Rule 1(r), C.P.C.
For the foregoing reasons, the application moved by petitoiners/defendants dated 02.05.2010 under Order 39 Rule 4 rad with Section 151 C.P.C. for vacation of temporary injunction granted in favour of plaintiffs/respondents is maintainable.
Further, Sri Mohd. Arif Khan, learned Senior Advocate, at this stage, submits that as the revisions No. 73 of 2010 filed by plaintiffs/respondents has already been decided, so he does not press the relief for early disposal of the same, as prayed in the instant writ petition.
Accordingly, the writ petition is allowed, a direction is issued to Civil Judge North (J.D.), Lucknow to decide the petitioner's application dated 02.05.2010 moved under Order 39 Rule 4 read with Section 151 CPC for vacation of the temporary injunction granted in favour of the plaintiffs/respondent No. 3 and 4 expeditiously preferably within a period of six weeks form the date of receiving a certified copy of this order after hearing counsel for parties in question in accordance with law Order Date :- 1.11.2011 Ravi/