Uttarakhand High Court

AO/132/2021 on 26 July, 2021

           IN THE HIGH COURT OF UTTARAKHAND
                               AT NAINITAL
       THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN

                                     AND

                 THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA

           APPEAL FROM ORDER NO. 132 OF 2021

                              26TH JULY, 2021

BETWEEN:

Smt. Rekha Negi & others                                   .....Appellants.


And

Smt. Dimple Negi & others                                  ....Respondents.

Counsel for the Appellants : Mr. Neeraj Garg, learned counsel.

Counsel for the respondents           :     Mr.   Rajendra     Arya,    learned
                                            counsel for    caveator/respondent
                                            Nos.1 and 2.

The Court made the following:

JUDGMENT:(per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)

The defendants-appellants have challenged the

legality of the order, dated 10.06.2021, passed by the

learned Principal Judge, Family Court, Dehradun, whereby the

learned Principal Judge has granted an ex parte temporary

injunction order in favour of the plaintiffs-respondents, Smt.

Dimple Negi, and Km. Pari Negi.

2. Briefly, the facts of the case are, that the plaintiffs-

respondents, Smt. Dimple Negi, and Km. Pari Negi, had filed

a civil suit before the Family Court for seeking a declaration

that the plaintiffs are the legal heirs of Late Mr. Vishamber

Singh; they have the right and interest in the movable and

immovable properties of Mr. Vishamber Singh after his death.

They had also sought a declaration that they are entitled to

the death benefits which would be released by the Oil and

Natural Gas Corporation (for short "the ONGC"), defendant

No.4. They had further sought a permanent injunction in their

favour against defendant Nos.1 to 3, who according to the

plaintiffs were the first wife of Late Mr. Vishamber Singh, and

his two children from the first wife.

3. According to plaintiff No.1, she met Mr. Vishamber

Singh through Facebook. They fell in love with each other. He

informed her that his first wife had expired, and his two

children were staying with their grandparents. Therefore, he

is looking for a companion for himself. The plaintiff No.1, and

Mr. Vishamber Singh got married on 15.10.2016 at

Gurudwara Shri Guru Singh Sabha, situated at Mahinder Park,

Delhi. At the time of marriage, while the plaintiff No.1 was

residing in Delhi, Mr. Vishamber Singh was residing in

Dehradun, and working with the ONGC. After the marriage,

Mr. Vishamber Singh brought the plaintiff No.1 to his house

situated at Yamnotri Enclave Store, Phase-II, Chanderbani

Road, near Kothari General Store, Dehradun. During the

marriage, the plaintiff No.1, and Mr. Vishamber Singh were

blessed with a daughter on 19.09.2018. A few years after

their marriage, and after the birth of their daughter, Mr.

Vishamber Singh informed the plaintiff No.1 that he had lied

about his first wife (defendant No.1 in the Civil Suit). It is not

that she had died, but he had taken divorce from her. He

further informed that he had already settled the permanent

alimony with his first wife. Unfortunately during the COVID-

19 pandemic, Mr. Vishamber Singh died on 12.05.2021. After

the death of Mr. Vishamber Singh, the plaintiffs approached

the ONGC for completing the formalities pertaining to the

death benefits. However, she was shocked to know that the

name of Mr. Vishamber Singh's first wife, i.e. the name of the

defendant No.1, Smt. Rekha Negi, continued to be recorded

in the official record of the ONGC.

4. The plaintiff No.1 further claimed that,

immediately, after the death of Mr. Vishamber Singh, on

26.05.2021, the defendant Nos.1 and 2 came to her house,

and told her to immediately vacate the house, failing which

she would face dire consequences. Moreover, subsequently,

on 27.05.2021, she has learnt that the defendant No.1 is

planning to sell the house. When she questioned the

defendant Nos.1 and 2 as to why they are planning to sell the

house, she was again threatened by defendant No.2.

Consequently, in order to save her life and property, the

plaintiff filed a complaint before the Senior Superintendent of

Police, Dehradun. But, so far, no action has been taken by

the police.

5. The plaintiff further claimed that on 30.05.2021,

defendant Nos.1 and 2 came with anti-social people, and

forcefully tried to evict the plaintiffs from the ground floor.

They further illegally entered the first floor of the said

property. Ever since then, the defendants Nos.1 to 3 are

staying in the first floor. They continued to threaten the

plaintiffs. Therefore, the plaintiffs have filed a Suit for

declaration and permanent injunction. Along with the Suit,

the plaintiffs filed an application for temporary injunction.

6. By order dated 10.06.2021, the learned Principal

Judge, Family Court, granted an ex-parte injunction order in

favour of the plaintiffs. Hence, this appeal before this Court.

7. Mr. Neeraj Garg, the learned counsel for the

appellants, submits that according to Order XXXIX Rule 3 of

the C.P.C., before any injunction can be granted, it is

essential that a notice to the defendant should be issued by

the Court. However, in the present case, an ex-parte

injunction order has been passed by the learned Principal

Judge, Family Court, without issuing a notice to the

defendants. Therefore, the said injunction order is legally

unsustainable.

8. Heard the learned counsel for the appellants, and

perused the impugned order.

9. Order XXXIX Rule 3 of the C.P.C. is 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.]"

10. A bare perusal of the provision clearly reveals that

an ex-parte injunction order can be passed where it appears

that the object of granting an injunction would be defeated by

the delay. Therefore, the learned counsel for the appellants is

unjustified in claiming that no ex-parte injunction order can

be granted by the Court.

11. In the present case, the learned Family Court has

noticed the fact that both the plaintiffs and defendants are

staying in the same property. According to the plaintiffs, the

defendants have illegally entered the first floor of the

property. Moreover, the defendant No.1 is trying to sell off

the property. Furthermore, the defendant Nos.1 and 2 are

trying to compel the plaintiffs to vacate the said property. In

these circumstances, it was imperative that an ex-parte

injunction order be passed in favour of the plaintiffs. Lest the

plaintiffs be ousted from the ground floor of the property by

selling out the property by the defendant Nos.1 and 2 to the

third party.