Ram Chandar vs Civil Judge. Malihabad. Senior ...
2011 Latest Caselaw 1081 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 23
 

 
Case :- MISC. SINGLE No. - 2298 of 2011
 

 
Petitioner :- Ram Chandar
 
Respondent :- Civil Judge. Malihabad. Senior Division. Lko And Others
 
Petitioner Counsel :- S.M Kazim
 
Respondent Counsel :- Manish Kumar
 

 
Hon'ble Shri Kant Tripathi,J.

Heard learned counsel for the petitioner and learned Standing Counsel for the respondent no. 1 and perused the record.

This is a writ petition for quashing the order dated 11.04.2011 passed by the learned Additional Civil Judge (Senior Division), Court No. 21, Lucknow in the regular suit no. 200 of 2011 (Ram Chandar Rawat Vs. Sanjay Katiyal and others), whereby the learned Additional Civil Judge declined to grant ex-parte injunction in favour of the petitioner.

Learned counsel for the petitioner submitted that the petitioner had made out a prima facie case on the basis of the sale deed and other materials. But the learned trial court declined to grant an ex-parte injunction in his favour. It was next submitted that the petitioner would suffer an irreparable loss if ex-parte injunction is not granted.

The legal position in regard to grant of ex-parte temporary injunction is well settled. Ordinarily, according to order 39 rule 3 of the Code of Civil Procedure, temporary injunctions should be granted only after giving notice to the defendant. However, grant of ex-parte temporary injunction in an exceptional matter is permissible, which can be done in a case where the object of granting temporary injunction would be defeated due to the delay being caused by giving notice to the defendant. Therefore, the court is required to see whether or not in a given situation, the conditions required for granting ex-parte temporary injunction do exist or not. If the conditions so required exist, it is open to the court to grant ex-parte temporary injunction. Otherwise, the court has to give a notice to the defendant before granting any temporary injunction in favour of the plaintiff.

In view of the aforesaid, it cannot be contended that the learned trial court acted against the settled norms in passing the impugned order. Therefore, issue of notice to the defendant cannot be held to be unjust and unfair. However, it seems to be just and expedient to direct the trial court to disposed of the application 6-C on the date already fixed. In case the disposal of the said application is not possible on the date already fixed either due to lack of service on the defendant or otherwise, the learned trial court, in that eventuality, disposed of the application 6-C within a period of two months from the date of appearance of the respondent nos. 2 & 3.

In view of the aforesaid, the writ petition is disposed of finally.

Order Date :- 16.4.2011

Sharad