Allahabad High Court
Kunwar Surendra Singh vs Civil Judge (J.D.) Distt. Rae Bareily ... on 9 April, 2025
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:20056
Court No. - 6
Case :- MATTERS UNDER ARTICLE 227 No. - 1862 of 2025
Petitioner :- Kunwar Surendra Singh
Respondent :- Civil Judge (J.D.) Distt. Rae Bareily And 7 Others
Counsel for Petitioner :- Akshat Kumar
Counsel for Respondent :- Avinash Singh Vishen
Hon'ble Pankaj Bhatia,J.
1. Short counter affidavit filed today in Court is taken on record.
2. Heard Shri Vivek Raj Singh, learned Senior Advocate assisted by Shri Akshat Kumar and Shri Shantanu Sharma, learned counsel for the petitioner and Shri Sueep Seth, learned Senior Advocate assisted by Shri Shishir Raj, learned counsel for the respondent.
3. Present petition has been filed challenging the order dated 12.03.2025 whereby Civil Judge (Junior Division), Raebareli in exercise of her powers under Order 39 Rule 1 & 2 of CPC has passed an ex-parte injunction order.
4. Learned counsel for the respondent raises a preliminary objection that against the said order, an appeal is prescribed under Order 43 Rule 1 of CPC and thus, the petitioner should be relegated to avail the remedy of appeal. Reliance is placed upon the judgment of the Supreme Court in the case of Radha Krishan Industries v. State of Himachal Pradesh and Ors.; (2021) 6 SCC 771 wherein the Supreme Court had recorded as under:
"27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well.
27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person.
27.3. Exceptions to the rule of alternate remedy arise where : (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged.
27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law.
27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion.
27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."
5. In the light of the said objection, learned counsel for the petitioner extensively draws my attention to the manner in which order dated 12.03.2025 came to be passed. He argues that as per the CIS Data, the suit was registered on 17.03.2025 as is evident from the data which is on record as Annexure - 39. He further argues that in the injunction application as well as in the suit, there was no pleading whatsoever so as to impress the Court of the leaned Civil Judge (Junior Division) to pass an order without even compliance of the mandatory provisions contained in Order 39 Rule 3 of CPC. Apart from the infractions as pointed out by him, he draws my attention to the letter dated 24.03.2025 written by the Civil Judge (Junior Division), Raebareli under her personal signature directing the SHO, Kotwali Nagar, Raebareli to ensure the compliance of the injunction order passed on 12.03.2025.
6. In the backdrop of serious allegations levelled, this Court had called for a report from District Judge, Raebareli and had also summoned the original file of the suit as well as the suit institution register as maintained by the District Court.
7. In terms of the order passed by this Court, a report has been submitted on 08.04.2025 by the District Judge, Raebareli. In the said report, it has been stated that the suit was presented before the Civil Judge (Junior Division) on 12.03.2025. It was stated that after the orders were passed for registering of the suit, the suit was actually registered in the computer/CIS on 17.03.2025 by the clerk concerned, as the report indicates that on 12.03.2025 the file was received late in the evening and thereafter, there being a holiday from 13th to 16th March, 2025, the actual filling was recorded as 17.03.2025 in the CIS Data. The report also suggests that in the original suit filing register maintained, the date of the institution of the suit in question was shown as 17.03.2025, however, later on, the same was scrolled off and 12.03.2025 has been recorded. The letter of the clerk concerned is also on record wherein in his explanation dated 07.04.2025, he accepted his mistake and stated that after the date was mentioned as 17.03.2025, realizing the error, the same was scrolled off and 12.03.2025 was recorded for which he also prayed that he may be pardoned for mistake.
8. The explanation of the Civil Judge (Junior Division) is also on record alongwith the report wherein she stated that the suit was presented on 12.03.2025 and orders were passed on the same date, however, in the CIS Data, the same was registered on 17.03.2025. She further stated that on 12.03.2025, the file was presented at about 2 PM on which orders were passed on the same date.
9. In the backdrop of the said facts, the following infractions emerge in the manner in which injunction orders have been passed:
"The suit was registered on 12.03.2025. Even if the contention of the report is believed to be correct, in the suit as well as in the injunction application, there was no allegation/averment to the effect that in the event, an injunction is not granted immediately, the plaintiff would suffer irreparably. In the impugned order also, there is no recording of the reasons which are mandatory in terms of the proviso to Order 39 Rule 3 of CPC."
10. At this stage, learned counsel for the respondent points out that the reasons for grant of ex-parte interim order immediately, were pleaded in Para 4 of the injunction application. The said injunction application has been filed alongwith the short counter affidavit filed today by respondent no.2.
11. The said argument of counsel for the respondent merits rejection for the reason that in Para 11 of the injunction application, it was stated that the cause of action first arose on 23.01.2025 when the respondents beat up the plaintiff and thereafter, on 17.02.2025 when a threat was issued by the defendant that they would take the possession very soon and thereafter on 24.02.2025 when once again a threat was issued by the respondents to the plaintiff threatening to take possession of the property. There is no explanation of absence of allegation in the injunction application as to what transpired between 24.02.2025 and 12.03.2025 - the date on which according to the petitioner the suit was filed and the injunction was pressed necessitating the passing of an interim order immediately.
12. In view of the said facts recorded above, there was no averment by the plaintiff to pray for grant of an ex-parte injunction expeditiously. Even in the said order, which is impugned herein, no reasonings which are mandatory in terms of the proviso to Order 39 Rule 3 of CPC have been recorded. The safeguards as prescribed in the judgment of the Supreme Court in the case of Ramrameshwari Devi and Ors. v. Nirmala Devi and Ors.; (2011) 8 SCC 249 have been completely overlooked. The said action is further compounded by the prima-facie error committed by the Civil Judge (Junior Division) in writing a personal signed letter to the SHO concerned for compliance of the order dated 12.03.2025.
13. In the original file that has been sent, what transpires is that an application was moved on 21.03.2025 stating that despite an injunction being granted, the police authorities were not helping the plaintiffs. On the said application which was numbered as 11ga(2), a handwritten order was passed by the Civil Judge (Junior Division) on 21.03.2025 directing issuance of letter to the concerned SHO for compliance of the order dated 12.03.2025. Apart from the said order, the Civil Judge (Junior Division) under her own signature communicated with SHO, Kotwali Nagar, Raebareli for compliance of the order dated 12.03.2025. The said letter is dated 24.03.2025 and is on record at Page 54 of the paper-book. Curiously enough, the said letter is also a part of the original record.
14. Although, it is well settled that the Court in exercise of its discretionary jurisdiction under Art. 227 of Constitution generally does not entertain the petition and the parties are relegated to avail the statutory remedy prescribed - in the present case being a remedy of appeal under Order 43 of CPC - however, the events as narrated above clearly demonstrates the manner in which the order has been passed by learned Civil Judge (Junior Division) and steps have been taken by going as far as writing a personal signed letter of compliance; the said letter clearly demonstrates the manner in which the authority has been misused by the Civil Judge (Junior Division).
15. Finding the manner of exercise of powers by the Civil Judge (Junior Division) to be wholly arbitrary exercise of power, having no sanction of law and not known to the process of decision making as prescribed under Code of Civil Procedure, the same cannot be sustained and this Court is inclined to exercise its powers under Art. 227 of the Constitution, failing which it would be perpetuating injustice. As such, impugned order dated 12.03.2025 is quashed.
16. In view of the fact that the impugned order dated 12.03.2025 has been quashed, no steps shall be taken in pursuance to the communication dated 24.03.2025.
17. District Judge, Raebareli is directed to relegate the file of Suit No.613 of 2025 (Kunwar Shobhit Singh & Ors. vs. Jitendra Singh & Ors.) to any other Civil Judge (Junior Division) where both the parties would be heard and an order shall be passed afresh on the injunction as prayed by the plaintiffs.
18. To avoid any further delay, it is directed that both the parties shall appear before the Court to be designated by the District Judge, Raebareli, in terms of the forgoing order, on 11.04.2025 at about 12 Noon and the designated Judge shall proceed to pass orders after hearing the parties, in accordance with law.
19. It is further clarified that the petitioner shall file objection to the injunction application on or before the said date i.e. 11.04.2025.
20. Original file and the records shall be returned to the District Judge by the Senior Registrar of this Court.
21. Present petition is allowed in above terms.
22. District Judge, Raebareli is directed to seek and send an explanation of the Civil Judge (Junior Division), Raebareli explaining as to under what powers a personal signed letter was issued to the SHO for compliance of the order dated 12.03.2025.
23. Copy of the explanation of Civil Judge (Junior Division), Raebareli shall be placed before this Court through Senior Registrar for perusal of the Court after 15 days from today on the administrative side.
Order Date :- 9.4.2025
nishant
