The Present Appellant Is A ... vs Unknown
2023 Latest Caselaw 766 UK

               Office Notes, reports,
SL.           orders or proceedings or
      Date                                                COURT'S OR JUDGES'S ORDERS
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               order with Signatures


                                          AO No.114 of 2023
                                          With
                                          IA/1/2023 (Interim Relief Application)
                                          Hon'ble Sharad Kumar Sharma, J.

Mr. Siddhartha Sah, learned counsel for the appellant.

Mr. Piyush Garg, learned counsel for the caveator.

The present appellant is a plaintiff in a civil suit being Civil Suit No.913 of 2020, "Vasudev Kukreti Vs. Bindu Kukreti and Others". The suit in question which was thus instituted, the plaintiff had already filed an application under Order 39 of Rule 1 and 2, that remained pending before the competent Court and no orders were passed on the same on merits.

During the pendency of the first application filed under Order 39 Rule 1 and 2, the plaintiff, under the purported plea, that there were changed circumstances, had filed a subsequent application yet again by invoking Order 39 Rule 1 and 2, almost praying for an akin nature of interim injunction.

The said application, as preferred on 21.12.2022, has been rejected by the learned trial Court by the impugned order, which is under challenge before this Court, i.e. by an order of 24.12.2022.

What has been attempted to be argued by the learned counsel for the appellant, is that there would be no bar for the plaintiff, to prefer the second application under Order 39 Rule 1 and 2 and that would be maintainable and, in order to justify his argument, the learned counsel for the plaintiff/appellant has made reference to a judgment of the High Court of Calcutta, as rendered by the Division Bench therein in F.M.A.T. 2754 of 1987, as decided on 04.30.1987, as reported in 1987 0 Supreme (Cal) 137.

The said judgment was rendered by the Division Bench of the Calcutta High Court, in the context of the implications of the provisions contained under Section 94 of the CPC, as to whether the sustainability for the grant of interim injunction would fall within an ambit of Section 94 of CPC in view of the further development or the altered circumstances.

In order to better appreciate the judgment rendered by the Calcutta High Court, and in order to make it applicable in the present Appeal from Order, Section 94 of CPS itself becomes relevant for its consideration.

Section 94 CPC is a supplemental proceeding, meaning thereby it cannot act as to substitute the provisions contained in Order 39 Rule 1 and 2 for the grant of a temporary injunction and it cannot be given a shape of a principal proceeding for grant of a temporary injunction, which could have been only relevant in an event of disobedience of an injunction already granted.

Hence, this Court is of the view that even if there is a changed circumstances until and unless the application under Order 39 Rule 1 and 2, which has been principally filed itself is decided on merit or considered on merits, subsequent application under Order 39 Rule 1 and 2 would not be tenable.

Further because of the view and as the reason assigned by the Court, that the principal relief which was sought under the Suit was, much beyond the relief sought in the subsequent application under Order 39 Rule 1 and 2 which was in contradistinction, hence, it could not be granted.

At this stage, this Court is refraining itself to pass any order on merit, this appeal would stand dismissed with liberty left open to the plaintiff / appellant, that irrespective of the fact as to whatsoever changed circumstances which has been pleaded to have chanced and referred to in the subsequent application under Order 39 Rule 1 and 2, that would be permitted to be amended to be brought on record by the plaintiff / appellant in the already pending application under Order 39 Rule 1 and 2 and as soon as the amendment is carried, the principal application under Order 39 Rule 1 and 2 would be considered on its own merits.

It is hoped and trusted, that the Court of 5th Additional Senior Civil Judge, Dehradun will make all efforts to decide the principal application within a period of sixty days from the date of the carrying of the amendment by the present plaintiff/ appellant in the earlier application pending under Order 39 Rule 1 and 2.

Subject to the aforesaid exceptions, the Appeal from Order is dismissed.

(Sharad Kumar Sharma, J.) 22.03.2023 Sukhbant