Madras High Court
V. Ulakanathan vs Ammachi on 4 March, 2021
C.R.P.Sr.No.93056 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.03.2021
CORAM
THE HON'BLE MRS. JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.Sr. No.93056 of 2020
V. Ulakanathan ... Petitioner
Vs.
Ammachi ... Respondent
Prayer: This Civil Revision Petition filed under Article 227 constitution
of India seeking for to set aside the Docket order dated 02.12.2020 made
in I.A. No.173 of 2020 in O.S. No.88 of 2019 on the file of the Court of
the Principal Sub-Ordinate Judge, Tindivanam.
For Petitioner ... Mr.T. Dhanasekaran
For Respondent ... No Appearance
****
ORDER
This Civil Revision Petition in S.R. stage has been filed under
Article 227 constitution of India seeking for to set aside the Docket order
dated 02.12.2020 made in I.A. No.173 of 2020 in O.S. No.88 of 2019 on
the file of the Court of the Principal Sub-Ordinate Judge, Tindivanam.
https://www.mhc.tn.gov.in/judis/
C.R.P.Sr.No.93056 of 2020
2. The case of the petitioner is that the petitioner herein is the 3rd
defendant and the respondent herein is the 3rd plaintiff in the suit in O.S.
No.88 of 2019 on the file of the Principal Sub-ordinate Judge,
Tindivanam. In the suit, the plaintiffs claim partition right over the suit
property. According to the petitioner, the suit property belonged to one
late Late Vemba Gounder who had wife, three sons and three daughter.
Predeceased of late Vemba Gounder, the suit property was partitioned
among the defendants 1 to 4 leaving the plaintiffs who are daughters of
the said late Vemba Gounder. Hence, the plaintiffs/daughters of Late
Vemba Gounder jointly filed the aforesaid suit for partition of the suit
schedule property into shares of 3/7. Pending the suit, the 3rd
plaintiff/respondent herein has filed I.A. No.173 of 2019 in O.S. No.88
of 2019 under Order 39 Rules 1 and 2 of C.P.C. seeking for interim stay
of status quo in the suit schedule property. The same was allowed by
order dated 02.12.2020. Being aggrieved the aforesaid order, the 3rd
defendant/the petitioner herein has filed the present Civil Revision
Petition to set aside the interim stay order dated 02.12.2020 made in I.A.
No.173 of 2020 in O.S. No.88 of 2019 passed by the Court below.
https://www.mhc.tn.gov.in/judis/
C.R.P.Sr.No.93056 of 2020
3. The learned counsel for the petitioner submits that the stay order
of the Court below is in clear violation of Civil Procedure Code without
serving notice to the 3rd defendant-respondent/petitioner herein. Having
not considered the prima facie regarding the suit and balance of
convenience in favour of the respondent, the Court below granted
injunction. As per Order 39 Rule (3) "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. Hence the
Court below ought not to have granted interim injunction without giving
notice to the respondent herein and hence the Docket order dated
02.12.2020 made in I.A. No.173 of 2020 is liable to be set aside. In
support of his contention, he relied on the Judgment in Radhey Shyam &
Another Vs. Chhabi Nath & Others reported in 2015-3-L.W.
4. Heard, the learned Counsel for the petitioner and perused the
material available on record.
https://www.mhc.tn.gov.in/judis/
C.R.P.Sr.No.93056 of 2020
V. BHAVANI SUBBAROYAN, J.,
lbm
5. Obviously, this Application to set aside the order of injunction
was one under Order 39 Rule 1 and 2 of CPC. Order 43 Rule1(r) CPC
provides that an appeal shall lie against the order made under Order 39
Rule 1 and 2 of CPC. In view of the same, this Civil Revision petition is
clearly not maintainable under Article 227 of the Constitution of India.
Therefore this Civil Revision Petition is dismissed as not maintainable.
There shall be no order as to costs. Consequently, connected
miscellaneous petition is closed if any.
6. The petitioner is directed to file an appeal before the appropriate
Court.
04.03.2021
Lbm
Index: Yes/No.
Speaking/Non-Speaking order
Internet: Yes/No.
To:
The Principal Sub-Ordinate Judge,
Tindivanam.
C.R.P.Sr. No.93056 of 2020
https://www.mhc.tn.gov.in/judis/
