Rajendra Pal And Another vs Smt. Ombati And Others
2011 Latest Caselaw 4924 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										Reserved
 

 
FIRST APPEAL FROM ORDER No. 2387 of 2011
 

 
Rajendra Pal And Another
 
Vs.
 
Smt. Ombati And Others
 
Hon'ble Satya Poot Mehrotra,J.

Hon'ble Yogesh Chandra Gupta,J.

Heard learned counsel for the appellants and perused the record.

This is an appeal by defendants against whom by order dated 30.5.2011, the learned Civil Judge (Senior Division), Agra has granted ex-parte injunction in favour of the plaintiff/respondent in O.S. No. 513 of 2011 (Smt. Ombati Vs. Rajendra Pal and others).

In brief, the aforesaid suit was filed by plaintiff/respondent, against the defendants/ appellants for permanent injunction. It was stated by the plaintiff that she along with her husband Siyaram is the owner in possession of the land in suit and cultivating crops thereon jointly. It was further stated that the defendants are bhu-mafia and they by hook or by crook want to grab plaintiff's land illegally. They many times pressurized plaintiff's husband Siyaram to execute the sale deed of the land in their favour, but they could not succeed. Thereafter the defendants with the help of their associates prepared a false and fabricated sale deed of the land in question regarding which Siyaram informed police and also the A.D.M. (F &R), Agra, who by order dated 4.2.2011 directed the Sub-Registrar concerned not to register any document in respect of the land in suit.

The plaintiff further stated that the defendants did not give up their illegal plan and ultimately on 19.5.2011, they kidnapped Siyaram, though the matter was reported to the police but in the meantime defendants were successful to force Siyaram to execute a document purporting to be a sale-deed in respect of the land in suit. The plaintiff stated that the sale-deed so obtained by the defendants is void ab-initio as the same was obtained by coercion and was also without any consideration. Therefore, it does not confer any right, title or interest upon the defendants in the land in suit. The plaintiff further stated that in the garb of said sale-deed, on 28.5.2011 all of sudden defendants alongwith their associates came to the land in suit and tried to dig foundation and collected building material near the land in suit and openly threatened to dispossess the plaintiff and to raise constructions, the plaintiff demonstrated whereupon the defendants went away leaving threat of dire consequences and to come again and raise constructions by dispossessing plaintiff therefrom, hence the suit. Plaintiff stated that her husband Siyaram is in the illegal custody of defendants and was not available to file the suit and sign the plaint, therefore, to protect the family property she is compelled to file the present suit by impleading Siyaram as proforma-defendant in the suit.

The plaintiff along with the suit also moved an application supported by an affidavit for ad-interim injunction praying that the defendants be restrained from dispossessing or interfering in any manner in peaceful possession of the plaintiff over the land in suit and also be restrained from alienating or transferring the land in suit or any part thereof to any person in any manner whatsoever till the decision of the suit.

It transpires from the record that in support of her case the plaintiff filed certified copy of extract of Khasra and Khatauni of the land in question wherein the name of plaintiff's husband Siyaram was recorded as bhumidhar in possession of the land in suit. Besids the aforesaid documents, the plaintiff also filed FIRs and other applications moved to the different authorities against the defendants regarding their illegal plan affecting the right of the plaintiff and her husband Siyaram over the land.

The learned Civil Judge, after considering the material on record was of the opinion that Siyaram, plaintiff's husband, was recorded tenure holder in possession of the land in suit and as such a prima-facie case was there in favour of the plaintiff and in light of other documents filed on behalf of the plaintiff, learned Civil Judge was of the view that the apprehension of the plaintiff was genuine that there might be immediate threat of plaintiff's dispossession from the land in suit and accordingly expressing the view that the very object of granting the injunction might be defeated by delay by his order dated 30.5.2011, the learned Civil Judge directed the defendants/appellants to maintain status-quo as also not to change the nature of land in suit nor to transfer the same to any other person till the date fixed by the Court. A date was also fixed and the notices were directed to be issued in accordance with law to the defendants to appear before the Court and file their answer in the matter.

It is in this backdrop of facts that the defendants/appellants are before this Court in this appeal with a prayer to set-aside the impugned order dated 30.5.2011passed in the aforesaid suit but, of course, without explaining why they preferred an appeal instead of choosing to file petition for vacation of interim injunction.

It is submitted on behalf of the defendants that they are owners in possession of the land in suit through a registered sale-deed dated 23.5.2011 and in view of the above, no ex-parte temporary injunction could be granted against them. It was further submitted that the Trial Court has erred in law in granting the temporary injunction to the plaintiff without affording any opportunity of hearing to the appellants.

We are not satisfied with the submissions made on behalf of the appellants. The defendants/appellants alleged that they are owner in possession of the property in suit on the basis of sale-deed dated 23.5.2011. The alleged sale-deed must have been in the possession of the appellants but neither the sale-deed nor any certified copy of the same has been made available on record by defendants/appellants for the perusal of the Court. Only a typed copy of the sale-deed has been filed.

It is further pertinent to the note that Order XXXIX, Rule 3 of the Code of Civil Procedure, 1908 provides as under:

"3. Before granting injunction, Court to direct notice to opposite party.-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:

[Provided 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, and require the applicant-

(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with-

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents on which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.]"

The above provision shows that the Court shall in all cases, before granting injunction, direct notice of the application for injunction to be given to the opposite party. However, where it appears to the Court that the object of granting injunction would be defeated by the delay, the Court may grant an injunction without giving notice of the application to the opposite party. In such a situation, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay.

As noted in the earlier part of this order, the Court below, on a consideration of the material on record and giving cogent reasons, has found it to be a fit case for grant of injunction and has also opined that the object of granting the injunction would be defeated by the delay.

Thus, the requirements for granting injunction without giving notice to the opposite party (defendants-appellants herein) were fulfilled in the present case, and the order passed by the Court below granting ex-parte injunction while issuing notice to the defendants-appellants does not suffer from any impropriety or illegality or infirmity.

As regards the decision of the Full Bench of the Delhi High Court in Chandu Lal vs. Municipal Corporation of Delhi, AIR 1978 Delhi 174 (FB), relied upon by Shri Salil Kumar Rai, learned counsel for the defendants-appellants, the said decision does not pertain to grant of ex-parte injunction as contemplated under Order XXXIX, Rule 3 of the Code of Civil Procedure, 1908.

The said decision deals with grant of injunction on a consideration of the version of both the sides after issuance of the notice to the opposite party. The said decision, thus, is not applicable to the facts and circumstances of the present case.

In view of all facts and circumstances of the case and the evidence on record, we do not find any impropriety or illegality or infirmity in the impugned order. This appeal has no merit and is liable to be dismissed.

However, it shall be open to the appellants to move the Trial Court for vacation of the stay order.

With these observations, this appeal is dismissed.

Date: 29.9.2011

Ajeet