Uttarakhand High Court
WPMS/2796/2021 on 5 May, 2022
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WPMS No. 2796 of 2021
Hon'ble Manoj Kumar Tiwari, J.
Mr. Vikas Bahuguna, Advocate for
the petitioner.
Mr. Nikhil Singhal, Advocate for the
respondent.
Heard learned counsel for the
parties.
Petitioner filed a suit for permanent
prohibitory injunction against the
defendants (respondents herein)
restraining them from interfering in the
peaceful possession of the scheduled
property, which allegedly was purchased
by him in the year 2017.
Petitioner also filed a temporary
injunction application in the said suit.
Learned trial Court passed ex-parte order
of temporary injunction in favour of the
petitioner on 18.11.2021 and defendants
to the suit were restrained from
interfering, directly or indirectly, with the
suit property till further orders.
Defendants to the said suit (respondents
herein) filed an appeal under Order 43 (1)
(r) CPC against the order dated
18.11.2021 passed by learned trial Court.
Learned District Judge, Haridwar has
allowed the said appeal, vide judgment
dated 08.12.2021 and order passed by
trial Court was set aside. Petitioner has
challenged the said judgment dated
08.12.2021 passed by District Judge,
Haridwar in Misc. Civil Appeal No. 53 of
2021.
Heard learned counsel for the parties
and perused the record.
Learned District Judge has taken
note of proviso to Rule 3 of Order 39 CPC,
which ordains that while granting ex-parte
injunction, Court has to record reason for
its opinion that object of granting
injunction would be defeated by delay,
and has held that learned trial Court did
not record any reason for granting
injunction, without issuance of notice to
the other side. Learned District Judge has
further held that without notice to the
other side, learned trial Court could not
have considered prima-facie case, balance
of inconvenience, irreparable loss, as the
same could have been considered only
after perusal of pleadings made by both
sides.
From the record of the writ petition,
it is apparent that defendants to the suit
were creating obstruction in the
construction over the disputed property,
therefore, delay of 3-4 days likely to be
caused in effecting service of notice upon
defendants would not have caused any
irreparable loss to the plaintiff.
This Court concurs with the view
taken by learned District Judge,
particularly, with reference to non-
observance of the provision contained in
proviso to Rule 3 of Order 39 CPC.
Since the trial Court had granted ex-
parte temporary injunction in favour of
petitioner, therefore, the matter was
relegated to the trial Court by learned
District Judge, after setting aside the
order of temporary injunction.
In such view of the matter, I do not
find any illegality in the judgment passed
by learned District Judge, which may
warrant interference under Article 227 of
the Constitution of India.
Learned counsel appearing for the
respondents submitted that his clients
have filed objection to the temporary
injunction application.
Having regard to the facts and
circumstances of the case, the writ
petition is disposed of with a request to
learned trial Court to consider petitioner's
temporary injunction application and pass
appropriate order, as per law, within six
weeks from the date of production of
certified copy of this order.
Till disposal of petitioner's temporary
injunction application, no third party
interest shall be created, qua the property
in question.
(Manoj Kumar Tiwari, J.)
05.05.2022
Shubham
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