Amarpal Singh Bhandari vs Shri Anil Kumar & Others
2021 Latest Caselaw 5435 UK

           IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL
                   Writ Petition (M/S) No. 2900 of 2021

Amarpal Singh Bhandari                                             .......Petitioner
                                            Vs.

Shri Anil Kumar & others

                                                                 .....Respondents

Mr. Vikas Bahuguna, Advocate, for the petitioner.

Mr. Tarun Lakhera, Advocate, for the caveator.

Hon'ble Sharad Kumar Sharma, J (Oral) A very peculiar situation which has emerged during the course of the argument of the present writ petition is that in a Suit being Suit No.55 of 2021, "Shri Anil Kumar Vs. Smt. Sunita Rani & others", which was instituted before the court of Civil Judge, Junior Division, Vikasnagar, District Dehradun. The said suit accompanied with it an application filed under Order 39 Rule 1 and 2 of the CPC, to be read with Section 151 of the CPC, for the grant of an ex parte injunction.

2. The learned Trial Court while considering the said application had passed an order on 30.07.2021, and if paragraph No.4, of the said order, is scrutinized in fact while considering the propriety of the application Paper No.18 (c), and considering the various other documents, which were on record, the learned court of Civil Judge, Junior Division, Vikasnagar, District Dehradun, had specifically opined, that the prima facie case in favour of the plaintiff is made out, and an observations has been made, that the defendant No.5, is interfering in the exclusive possession over the property, and accordingly based on the said logic, the learned Trial Court has passed the following order:-

",slh ifjfLFkfr;ksa esa izfroknh la[;k 5 dks ,di{kh; :Ik ls fuf'k} fd;k tkrk gS"

3. As a consequence of the aforesaid order, a temporary injunction was passed, and the defendant No.5, was restrained from making

any interference, and it was thereafter, that the court has proceeded to issue notices under Order 39 Rule 3 of the CPC.

4. This order passed by the learned Trial Court was put to challenge by the petitioner by preferring a Miscellaneous Civil Appeal No.10 of 2021, "Shri Amarpal Singh Bhandari Vs. Smt. Sunita Rani and others", and the Miscellaneous Civil Appeal came up for consideration before the court of Additional District Judge, Vikasnagar, District Dehradun, and the same has been dismissed on 15.12.2021, holding it to be not maintainable by interpreting the order of 30th July, 2021, as if it was an exclusively an order which was passed under Order 39 Rule 3 of the CPC, and since the orders passed under Order 39 Rule 3 of the CPC, is not included in the appellate provisions provided under Order 43 Rule (1) (r) of the CPC, the appeal was held to be not maintainable.

5. This view taken by the Appellate Court is not acceptable by this Court for the reasons that the appeal would from the said lie, the reason being, for the purposes of the judicial interpretation of the order dated 30.07.2021, the inferences drawn, therein, where the learned Trial Court has recorded the findings pertaining to the prima facie case, it has recorded the findings that there is a deliberate effort of interference by the defendant No.5, when the court passes an order of injunction restraining the defendant from interference, this part of an order will fall to be an order within the ambit of Order 39 Rule 1 of the CPC. While passing an order of granting a temporary injunction in an ex parte manner and simultaneously issuing notices to the defendant. The observations made for issuing of the notices under Order 39 Rule 3 of the CPC, will in itself not make an order of 30.07.2021, as to be a composite order passed under Order 39 Rule 3 of the CPC, in order to interpret the implications of Order 43 Rule (1) (r) of the CPC, to bar an appeal because no appeal has been contemplated against an orders passed under Order 39 Rule 3 of the CPC.

6. Learned counsel for the petitioner had submitted, that the interpretation given to the order of the learned Trial Court dated 30.07.2021, by the learned Appellate Court holding the appeal to be not maintainable is absolutely in contravention to the principles laid down in the judgment of the Hon'ble Apex Court as reported in 2000 (7) SCC 695,

"A.Venkatasubbiah Naidu Vs. S. Chellappan & others". The paragraph No.13, of the said judgment, is extracted hereunder:-

"13. 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 applicable 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."

7. What has been laid down by the Hon'ble Apex Court is that granting of an ex parte injunction will fall to be a repository to the powers of grant of injunction under Order 39 Rule 1 and 2 of the CPC, and the said exercise of powers will be an exercise of powers which would be falling under Order 39 Rule 1 of the CPC, and under the aforesaid logic, and the ratio laid down by the Hon'ble Apex Court, the appeal preferred by the petitioner would be maintainable, as against the grant of ex parte temporary injunction too, as that part of the order would fall to be an order under Order 39 Rule 1 and 2 of the CPC, being rendered in an exercise of the repository powers under Order 39 of the CPC.

8. Hence, while partly allowing the writ petition and setting aside the order of the Appellate Court dated 15.12.2021. The matter is remitted back to the Appellate Court of Additional District Judge, Vikasnagar, District Dehradun, to decide the Miscellaneous Civil Appeal No.10 of 2021, "Shri Amarpal Singh Bhandari Vs. Smt. Sunita Rani and others" itself on its own merit, within a period of two months from the date of the production of a certified copy of this judgment.

9. During this period, the apprehension expressed by the respondent/plaintiff, that the defendant may altered or change the nature of the property. The injunction order granted by the learned Trial Court on 30.07.2021, is modified to the extent that the parties to the suit would maintain the status quo qua the property in question, during the period when the appeal itself is decided on its own merits.

10. This order may not be construed by the Appellate Court, as if this Court has expressed any opinion on the merits of the matter. The appeal has to be decided exclusively on its own merit, without being influenced by the observations made by this Court.

(Sharad Kumar Sharma, J.) 31.12.2021 NR/