Punjab-Haryana High Court
Vijay Pal And Others vs Lali Devi And Others on 18 March, 2024
Neutral Citation No:=2024:PHHC:038986
205. 2024:PHHC:038986
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.7595 of 2019 (O&M)
I. Date of decision: 18.03.2024
Vijay Pal and others .... Petitioners
Versus
Smt. Lali Devi and others .... Respondents
2. Civil Revision No.7597 of 2019 (O&M)
Vijay Pal and others .... Petitioners
Versus
Smt. Lali Devi and others .... Respondents
3. Civil Revision No.7598 of 2019 (O&M)
Vijay Pal and others .... Petitioners
Versus
Smt. Lali Devi and others .... Respondents
4. Civil Revision No.7599 of 2019 (O&M)
Vijay Pal and others .... Petitioners
Versus
Smt. Lali Devi and others .... Respondents
CORAM: HON'BLE MR. JUSTICE GURBIR SINGH
Present: Mr. Hitesh Malik, Advocate, for the petitioners.
Mr. Akshay Jindal, Advocate, for respondent No.1.
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Neutral Citation No:=2024:PHHC:038986
Civil Revision No.7595 of 2019 (O&M) -2-
GURBIR SINGH, J.
1. By this common order, the above said four revision petitions
are being disposed of as they arise out of the same proceedings.
2. Challenge in these revision petitions is to the order dated
08.08.2019 passed by learned Additional District Judge, Gurgaon where the
appeal filed by the petitioners against the order dated 01.10.2018 passed by
learned Civil Judge (Junior Division), Pataudi, has been disposed of as not
maintainable.
3. Brief facts necessary for disposal of these revision petitions are
that the petitioners-plaintiffs filed a suit for declaration with consequential
relief of permanent and mandatory injunction against the respondents-
defendants. Along with the suit, an application under Order 39 Rule 1 & 2
CPC read with Section 151 CPC for grant of temporary injunction
restraining the issuance of warrant of possession of the suit land and for
grant of stay of execution of judgment dated 30.05.2018 till final decision
of civil suit and further restraining defendant No.1 not to interfere in the
peaceful possession of the plaintiffs and also restrain defendant Nos.53 to
55 to obtain any procedure for delivery of possession to defendant No.1 for
the suit property.
4. During the pendency of suit, learned trial Court, after hearing
learned counsel for the plaintiffs and defendant No.1 and authorized
representatives of defendants No.62 to 64 passed a detailed order whereby
request for grant of ad interim injunction was declined vide order dated
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01.10.2018 and the case was adjourned for filing written statement. The
plaintiffs filed appeal under Order 43 Rule 1(r) CPC. The learned
Additional District Judge, while relying upon Iqbal Singh Versus Chanan
Singh, 1966 AIR (P&H) 165, disposed of the appeal being not
maintainable and directed the parties to appear before the learned trial
Court.
5. Both the parties agree that the order declining grant of
ad-interim injunction has been passed by the trial Court after hearing both
the parties, so, appeal was maintainable. There is no dispute that the remedy
under Article 227 of the Constitution of India is available to the petitioners
only when no appeal lies against the order.
5.1 Since the order was passed by the learned trial Court after
hearing the parties, so in view of provisions of Section 104, Order 43 Rule
1(r) CPC, appeal is maintainable. Reference in this regard can be made to
the judgment of the Hon'ble Supreme Court in A. Venkatasubbiah Naidu
Versus Chellappan and others, AIR 2000 Supreme Court 3032. Paras 11
and 20 of said judgment read as under:-
"11. It cannot be contended that the power to pass interim ex
parte orders of injunction does not emanate from the said
Rule. In fact, the said rule is the repository of the power to
grant orders of temporary injunction with or without notice,
interim or temporary, or till further orders or till the disposal
of the suit. Hence, any order passed in exercise of the
aforesaid powers in Rule 1 would be appealable as indicated
in Order 43, Rule 1 of the Code. The choice is for the party
affected by the order either to move the appellate court or to
approach the same Court which passed the ex parte order for
any relief."
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"20. Now what remains is the question whether the High Court
should have entertained the petition under Article 227 of the
Constitution when the party had two other alternative
remedies. Though no hurdle can be put against the exercise of
the constitutional powers of the High Court it is a well
recognized principle which gained judicial recognition that the
High Court should direct the party to avail himself of such
remedies one or the other before he resorts to a constitutional
remedy. Learned single judge need not have entertained the
revision petition at all and the party affected by the interim ex
parte order should have been directed to resort to one of the
other remedies. Be that as it may, now it is idle to embark on
that aspect as the High Court had chosen to entertain the
revision petition."
5.2 In the case in hand, learned trial Court after hearing both the
sides passed a detailed order dated 22.10.2018 and held that there was no
ground to grant ad interim injunction and request of the plaintiff in that
regard was declined. The learned trial Court passed speaking order, after
hearing both the parties and after applying mind whether plaintiff is entitled
for ad interim injunction or not. Whether the order is passed ex-parte on an
application under Order 39 Rule 1 and 2 CPC or is passed after hearing the
parties, then appeal is maintainable. The only requirement is that the order
is passed under Rules 1 and 2 of Order 39 CPC. Any order granting or
declining an injunction cannot be passed under Rule 3 of Order 39
independently of Rule 1 or 2 CPC. If the Court just give notice of the
application under Order 39 Rule 1 and 2 CPC to the other party without
expressing any opinion declining the ad interim injunction, then appeal is
not maintainable. In the case in hand, order declining ad interim injunction
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was passed after hearing the parties, so appeal against said order is
maintainable under Order 43 Rule 1 (r) CPC.
6. In the light of above discussion, the impugned order passed by
the learned appellate Court that appeal is not maintainable is hereby set
aside and the learned appellate Court is directed to decide the appeal after
hearing the parties in accordance with law. All the four revision petitions
are allowed accordingly.
7. Parties are directed to appear before the learned appellate
Court concerned on 08.04.2024.
8. Pending application, if any, shall also stand disposed of.
(GURBIR SINGH)
JUDGE
March 18, 2024
sanjeev
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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